American Federation of Government Employees, Council 215 (Union) and Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia (Agency)

[ v60 p461 ]

60 FLRA No. 92

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 215
(Union)

and

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
FALLS CHURCH, VIRGINIA
(Agency)

0-AR-3833

_____

DECISION

November 30, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Laurence M. Evans filed by the Union and the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. Each party filed an opposition to the other's exceptions.

      The Arbitrator found that one section of an agreement clarifying the parties' overtime procedures (clarification agreement) is unenforceable and that other certain sections of the clarification agreement, as well as certain sections of the parties' negotiated National Office of Hearings and Appeals Overtime Procedures (overtime agreement), are enforceable and were violated by the Agency. Accordingly, he sustained the grievance in part and denied it in part.

      For the following reasons, we deny the exceptions.

II.     Background and Arbitrator's Award

      As relevant here, the Union filed a grievance (and a supplement to the grievance) alleging that the Agency violated the clarification agreement and the overtime agreement by unilaterally changing overtime procedures at several Agency offices. The grievance was unresolved and was submitted to arbitration. As the parties [ v60 p462 ] did not stipulate the issues, the Arbitrator framed the issues, in pertinent part, as follows:

[T]o what extent, if any, do the various overtime provisions of the applicable overtime agreements conflict or interfere with [the Agency's] managerial prerogatives under Section 7106 of the Statute?
To the extent the various overtime provisions of the applicable agreements are negotiable, legal and enforceable, has the Union met its burden of proof that [the Agency] has committed widespread violations of these agreements, as alleged?
If so, what is the appropriate remedy?

Award at 10. [n1] 

      At the outset of his analysis, the Arbitrator emphasized that "this dispute concerns only [the Office of Hearings and Appeals' (OHA's)] voluntary overtime procedures[.]" Id. In this connection, the Arbitrator stated that "[n]othing in this matter takes away from or erodes [the Agency's] right to direct and schedule `mandatory' overtime[.]" Id. at 10-11 (emphasis removed).

      The Arbitrator next addressed the Union's claim that the Agency violated a section of the clarification agreement that permits volunteers to determine when, during spans of time set forth in the overtime agreement, they will work overtime. [n2]  The Arbitrator found that this section conflicts with management's "unfettered right to determine when the overtime will be worked and for how long, subject to minimums, maximums and time frames which are . . . non-intrusive `appropriate arrangements' under the Statute." Id. at 13-14.

      The Arbitrator also found, however, that the sections of the overtime and clarification agreements concerning allocation of overtime by position are enforceable and had been violated. [n3]  In this connection, the Arbitrator found that under these sections, if management offers voluntary overtime for the work of a particular position, then management must first offer that overtime to the incumbents of the position before offering it to non-incumbents. The Arbitrator determined that the sections are enforceable procedures under § 7106(b)(2) of the Statute, and that the Agency violated the sections by assigning overtime work to nonincumbent volunteers.

      To remedy the contractual violation, the Arbitrator directed the Agency to "reconstruct" its Saturday, Sunday, holiday and alternative work schedules for the pertinent time period, to determine how much overtime would have been worked by volunteer incumbents of the positions, and to pay them accordingly. Id. at 20. The Arbitrator stated that "[e]xactly who these employees are will be determined in the `compliance' phase of this proceeding." Id. The Arbitrator also stated that, in the alternative, the parties could negotiate an appropriate amount of backpay for each affected employee. Additionally, the Arbitrator directed the Agency to comply with all lawful sections of its agreements concerning voluntary overtime.

      In response to a Union claim that the Agency violated the Statute by unilaterally changing overtime procedures, the Arbitrator found "no evidence . . . remotely suggesting that this dispute is anything more than a contract [ v60 p463 ] interpretation dispute." Id. at 19. In this connection, the Arbitrator stated that the evidence did not "establish that [the Agency] has made the kinds of unilateral changes that would trigger an impact and implementation bargaining obligation[,]" and "[t]he fact that [the Agency] interprets the agreements one way and the Union another does not establish that any unilateral changes within the meaning of the Statute have occurred." Id.

III.     Positions of the Parties

A.     Union Exceptions

      The Union challenges the portion of the award finding unenforceable the section of the clarification agreement that permits employees to choose when they will work overtime. According to the Union, that section of the clarification agreement is an enforceable appropriate arrangement under § 7106(b)(3) of the Statute, and the Arbitrator erroneously failed to either explain how the section excessively interferes with management's rights or to consider the benefits that the section provides to employees. Further, the Union asserts that the award fails to draw its essence from the section.

      The Union also asserts that the award is contrary to law because the Arbitrator failed to find that the Agency violated the Statute by unilaterally changing overtime procedures. In addition, the Union contends that this aspect of the award fails to draw its essence from the overtime agreement because that agreement states that overtime procedures "may only be revised, changed or modified at the National OHA Component level, by and through negotiations." Union Exceptions at 18. Finally, the Union contends that this aspect of the award is based on a nonfact.

B.     Agency Opposition

      The Agency asserts that the Arbitrator correctly found that permitting employees to determine when they will work overtime excessively interferes with management's right to assign work. The Agency also asserts that the Arbitrator did not err in declining to find a statutory violation for unilateral changes in overtime procedures.

C.     Agency Exceptions

      The Agency argues that the portion of the award finding that the Agency violated the sections of the overtime and clarification agreements concerning allocation of overtime by position is contrary to management's right to assign work under § 7106(a)(2)(B) of the Statute. Specifically, the Agency contends that this portion of the award effectively precludes management from assigning the overtime work of a position to non-incumbents of the position even if job-related individual characteristics warrant such an assignment.

      Further, according to the Agency, the sections of the overtime and clarification agreements concerning allocation of overtime by position, as interpreted by the Arbitrator, do not constitute procedures under § 7106(b)(2) of the Statute because provisions that "restrict management's ability to determine to whom overtime assignments will be made" do not constitute procedures. Agency Exceptions at 10. The Agency also claims that the sections do not constitute appropriate arrangements under § 7106(b)(3) because they were not intended to ameliorate the adverse effects of the right to assign overtime, and they "provide[] no circumstance in which the Agency could determine that one person is better suited to `pull cases' than another." Id. In addition, the Agency contends that the award does not reconstruct what management would have done if it had complied with those sections because there is no basis in the provisions, law, rule or regulation for requiring the Agency to reconstruct its work schedules and determine how much overtime employees would have worked. Further, the Agency asserts that the Arbitrator cannot "defer to compliance" or "offer the parties a settlement out" to satisfy the requirement that an arbitration awards affecting management rights must reconstruct what management would have done if it had complied with the agreement. Id. at 12 n.4, 13 n.5.

D.     Union Opposition

      The Union asserts that the sections of the overtime and clarification agreements concerning allocation of overtime by position constitute procedures under § 7106(b)(2) of the Statute. The Union also asserts that the remedies reconstruct what the Agency would have done if it had complied with the sections. Further, the Union contends that, by challenging the portion of the remedy stating that the parties may negotiate their own formula for calculating backpay, the Agency is inappropriately requesting an advisory opinion from the Authority. In this connection, the Union claims that "[u]nless and until the parties agree to avail themselves of this recommended settlement option, an appeal of this aspect of the Award is not ripe and amounts to an advisory opinion[.]" Union Opp'n at 11.

IV.     Preliminary Matter

      The Union claims that, by challenging the portion of the remedy stating that the parties may negotiate their [ v60 p464 ] own formula for backpay, the Agency is requesting an advisory opinion from the Authority in contravention of 5 C.F.R. § 2429.10, which pertinently provides that "[t]he Authority . . . will not issue advisory opinions." The Authority has found that an opinion as to matters that might occur in the future constitutes an advisory opinion. See AFGE, Local 1864, 45 FLRA 691, 694-95 (1992) (where bargaining over a matter had terminated, Authority declined to address negotiability of a proposal that might be offered in potential future bargaining over that matter).

      Here, the Agency challenges the portion of the Arbitrator's statement that the parties may negotiate their own formula for backpay. This challenges the Arbitrator's authority to hold that such negotiations are an option -- not hypothetical events that might occur in the future, such as whether the outcome of such future negotiations would be consistent with law. Accordingly, we find that the Agency is not requesting an advisory opinion, and we address the Agency's exceptions infra.

V.     Analysis and Conclusions

A.     The award is not contrary to § 7106(b)(3) of the Statute.

      The Union alleges that the Arbitrator's refusal to enforce the section of the clarification agreement that permits employees to determine when they will work overtime is contrary to § 7106(b)(3) of the Statute. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      As relevant here, the right to assign work under § 7106(a)(2)(B) of the Statute includes the right to assign overtime and to determine when overtime will be performed. AFGE, Local 1302, Council of Prison Locals C-33, 55 FLRA 1078, 1079 (1999) (Member Wasserman concurring); SSA, S.E. Program Serv. Ctr., Birmingham, Ala., 55 FLRA 320, 321 (1999). A contract provision that requires an agency to permit employees to work overtime during a particular period of time, without regard to what time of day the agency determines that it needs overtime work to be performed, affects management's right to assign work. Id.

      The section at issue here provides, in pertinent part, that once overtime is allocated, unit employees "can work the overtime anytime during the hours stated in the [overtime] agreement." Award at 5 (emphasis in award). The hours stated in the overtime agreement are "between the hours of 3:00 PM and 8:30 PM" for "daily overtime" and "between the hours of 6:30 AM and 5:30 PM[]" for Saturday, Sunday and holiday overtime. Id. The Arbitrator determined that management's rights would be affected if employees are permitted to determine when, during the negotiated range of time, they will perform overtime. Although the Union asserts that the Arbitrator did not explain how the section of the clarification agreement infringes on management's rights, the Arbitrator's determination is consistent with the precedent set forth above and supports a conclusion that the section affects management's right to assign work.

      The Union also asserts that the section constitutes an enforceable appropriate arrangement under § 7106(b)(3) of the Statute. It is undisputed, in this regard, that the section constitutes an arrangement and that the parties dispute only whether the section excessively interferes with management's right to assign work. Accordingly, we limit our discussion to whether the section excessively interferes with the Agency's management right. See United States Dep't of Veterans Affairs, Augusta, Ga., 59 FLRA 780, 783 (2004) (Member Pope dissenting in part on other grounds) (VA Augusta). [n4] 

      To determine whether an arrangement excessively interferes with management's rights, it is necessary to weigh the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See NTEU, 59 FLRA 978, 981 (2004). Although the Arbitrator did not apply this balancing test, his failure to do so does not by itself render the award deficient. See United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 55 FLRA 163, 166 (1999) (citation omitted). Instead, it is necessary for the Authority to determine whether the Arbitrator's legal conclusion that the section of the clarification agreement is unenforceable is consistent with the underlying law that applies -- here, § 7106(b)(3) of the Statute. See id. Because the record provides a sufficient basis for making that determination here, we apply the appropriate test and address whether the section of [ v60 p465 ] the clarification agreement's benefits to employees are outweighed by the burden on management's rights. See id. at 166-67.

      With regard to the benefits to employees, the Union contends that the section permits some unspecified number of employees to work overtime when they otherwise would not be able to do so because of their work schedules. See Union Exceptions at 10-11 (the Arbitrator "failed to weigh the benefits . . . of the more expansive hours" provided by the provision to "[e]mployees who arrived at work for their regular, weekday tour later in the flexible band and those who could only work on Saturday afternoon[.]") With regard to the intrusion on management rights, the Agency contends that the section would permit employees to choose to work overtime during any hours of the time span set forth in the overtime agreement, even if management wants that overtime worked at a different time. In this connection, the Agency cites Agency witness testimony indicating that overtime work performed during certain hours has proven to be less efficient and productive than overtime work performed during other hours. See Agency Opp'n at 5. In these circumstances, while the benefit to some unspecified number of employees may be significant, we find that the burden on management's right to assign work -- specifically, the aspect of that right allowing management to determine when overtime work will be performed -- is more significant. Cf. NAGE, SEIU, AFL-CIO, 40 FLRA 657, 677 (1991) (provision excessively interfered with right to assign work because it would not allow management to change starting time for Saturday overtime without agreement of affected employees).

      In these circumstances, the Union has not demonstrated that the section constitutes an appropriate arrangement or that the Arbitrator erred by declining to enforce it. Accordingly, we deny the exception.

B.     The award is not contrary to § 7116 of the Statute.

      The Union argues that the award is contrary to law because the Arbitrator failed to find that the Agency violated § 7116 of the Statute by unilaterally changing overtime procedures. As relevant here, prior to implementing a change in conditions of employment of unit employees, an agency must provide the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain. See United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999).

      The Arbitrator acknowledged the Union's claims that the Agency "unilaterally changed negotiated overtime procedures without giving the Union notice and an opportunity to bargain over the impact and implementation of those changes" and that, "even assuming that a number of the provisions of the overtime agreements do conflict with the Statute[,]" the Union "was nonetheless entitled to notice and an opportunity to negotiate[.]" Award at 9. The Arbitrator also acknowledged the Agency's claims that the Union failed to establish that the Agency's "field offices have engaged in widespread, nationwide violations of the various overtime agreements[,]" and that although the Agency "may have violated the agreements on an isolated basis in some locations, it never engaged in any widespread or conscious effort to repudiate the agreement." Id. at 8.

      The Arbitrator resolved the competing claims by concluding that "[t]he evidence does not at all establish that [the Agency] has made the kinds of unilateral changes that would trigger an impact and implementation bargaining obligation[,]" and "[t]he fact that [the Agency] interprets the agreements one way and the Union another does not establish that any unilateral changes within the meaning of the Statute have occurred." Id. at 19. Thus, the Arbitrator rejected the Union's claim that the Agency violated the Statute. The Union provides no basis for finding that the Arbitrator erred in this regard.

      Further, although the Agency argued before the Arbitrator that several sections of the parties' agreements are unenforceable, see Award at 6, there is no basis for concluding that the Agency actually terminated any of those sections. In fact, before the Arbitrator, the Union expressly stated that "throughout this process and even beyond, the Agency has directed managers to follow the Procedures and national agreement." Union Exceptions, Attachment 11 at 27-28. The Union also cited the Agency's denial of the grievance as stating that: "[t]he hearing offices have been frequently reminded of their obligations to administer overtime in accordance with our negotiated agreements[;]" and "[t]he Agency will . . . continue to comply with our negotiated agreements." Id. at 28.

      Moreover, although the Arbitrator found that certain sections of the parties' agreements are contrary to law, the Arbitrator did not hold that the Agency could terminate those sections without satisfying its impact and implementation bargaining obligation. In fact, the Arbitrator expressly directed the parties to "meet to determine how they will go about implementing" the award. Award at 19. There is no basis on which to conclude that, by so directing the parties, the Arbitrator intended to permit the Agency to violate any bargaining obligations that might result from such termination. We [ v60 p466 ] note, in this connection, that the Agency may make changes to existing practices that are illegal, but it must fulfill its obligation to bargain over the impact and implementation of the changes. See United States Dep't of the Treasury, Customs Serv., New Orleans, La., 38 FLRA 163, 174 (1990) (citation omitted).

      For the foregoing reasons, the Union has not demonstrated that the Arbitrator erred by declining to find a violation of § 7116 of the Statute. Accordingly, we deny the exception.

C.     The award draws its essence from the clarification and overtime agreements.

      For an award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established 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 an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority defers to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Union argues that the award fails to draw its essence from the clarification agreement because that agreement expressly permits employees to choose when, within negotiated spans of time, they will work overtime. The Arbitrator did not disagree with this interpretation of the agreement. Instead, the Arbitrator found that, under this interpretation, the agreement was unenforceable. [n5]  In these circumstances, the exception provides no basis for concluding that the award is deficient for failing to draw its essence from the clarification agreement.

      The Union also argues that the award fails to draw its essence from the section of the overtime agreement stating that overtime procedures "may only be revised, changed or modified at the National OHA Component level, by and through negotiations." Union Exceptions at 18. As discussed previously, the Arbitrator found that the Agency did not make unilateral changes that required bargaining, and the Union has not demonstrated that this finding is deficient. Thus, the Union does not provide any basis for concluding that the award is irrational, unfounded, implausible, or in manifest disregard of the overtime agreement. Accordingly, we deny the exception.

D.     The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry AFB). The Authority will not find an award deficient on the basis of the arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union asserts that the Arbitrator erred by finding that the case before him involved only a contract interpretation dispute. To the extent that the Union is challenging the Arbitrator's finding that no statutory violation occurred here, the Union does not explain how a legal conclusion regarding whether a party violated the Statute constitutes a "fact" underlying the award. Accordingly, the award is not based on a nonfact, and we deny the exception.

E.     The award is not contrary to management's right to assign work under § 7106(a)(2)(B) of the Statute.

      The Agency claims that the portion of the award finding enforceable the sections of the clarification and overtime agreements requiring the Agency to offer overtime work first to incumbents of a position is contrary to its right to assign work. In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects management's rights. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If the award affects management's rights, then the Authority applies the two-prong test established in the Authority's decision in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Under prong I of BEP, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153. If it does, then under prong II of BEP, the Authority examines whether the arbitrator's remedy reflects a reconstruction of what management would have done if [ v60 p467 ] management had not violated the law or contractual provision at issue. Id. at 154.

1.     Effect on management's right

      The right to assign work encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See Prof'l Airways Sys. Specialists, 59 FLRA 485, 487 (2003) (PASS) (Chairman Cabaniss concurring). The right to assign work also includes the right to assign overtime. See id. An arbitration award that requires management to assign certain work to a particular group of employees affects the right to assign work because it precludes management from assigning such work to a second group of employees when employees in the first group are available. See United States DOJ, Fed. Bureau of Prisons, United States Penitentiary, Leavenworth, Kan., 53 FLRA 165, 170 (1997).

      The award directs the Agency to comply with the sections of the overtime and clarification agreements that require the Agency to first offer the overtime work of a position to the incumbents of that position. Consequently, the award affects management's right to determine to whom or what positions certain overtime duties will be assigned and, as such, affects the right to assign work. See id.

2.     Prong I of BEP

      The Authority consistently has held that when management has determined that two or more employees are equally qualified to undertake an assignment, a proposal or provision prescribing how management will select from among those employees constitutes a procedure under § 7106(b)(2). See United States DOD, Def. Logistics Agency, Def. Distrib. Ctr., Def. Distrib. Depot, Red River, Texarkana, Tex., 56 FLRA 637, 642 (2000) (DLA); United States Dep't of the Air Force, Dover Air Force Base, 436th Air Lift Wing, Dover, Del., 55 FLRA 935, 938-39 (1999); Nat'l Ass'n of Agric. Employees, Local 39, 49 FLRA 319, 330 (1994); NTEU, 47 FLRA 1038, 1044 (1993); NTEU, 18 FLRA 780, 781 (1985).

      The award concerns only the Agency's voluntary overtime procedures. In this regard, the Arbitrator expressly found that "[n]othing in this matter takes away from or erodes [the Agency's] right to direct and schedule `mandatory' overtime under contract or law." Award at 10-11. Under the award, management has a choice when it determines that a specific overtime assignment should be assigned to a particular employee: management can choose to use mandatory, rather than voluntary, overtime assignment procedures and, in so doing, assign the mandatory overtime to particular employees. Consequently, the award leaves unaffected management's right to determine that employees are not equally qualified for particular overtime work and assigning that work to the employee of management's choice.

      Further, the Agency provides no basis for concluding that, in the past, management based overtime assignments on individual employee qualifications. In this connection, the Arbitrator found that the overtime work at issue is work that the incumbents perform "as a part of their normal and regular work assignment[s]," and that senior case technicians are the "employees who are most familiar and most current with [senior case technician] work." Id. at 17-18. The Arbitrator also found that the Agency's own practice is to make overtime hours available to incumbent and non-incumbent volunteers equally, which indicates that the Agency considers incumbents at least as qualified as non-incumbents to perform the overtime work.

      For the foregoing reasons, the award does not affect management's right to determine whether employees are equally qualified for future overtime assignments, and there is no evidence that the award reverses a management determination that employees are not equally qualified. The award merely enforces contract provisions that set forth how management will select from among employees that management has already determined are equally qualified for overtime assignments, which supports a conclusion that the award enforces procedures under § 7106(b)(2) of the Statute. See, e.g., DLA, 56 FLRA at 642.

      The Agency cites PASS, 59 FLRA 485, which found outside the duty to bargain a proposal that required management to approve employees' requests to take work assignments home and receive either compensatory time or overtime compensation for the work thereafter performed at home. Unlike the sections at issue here, which merely require equitable distribution of overtime among qualified employees once management has decided to permit and assign voluntary overtime, the proposal at issue in PASS required management to assign overtime regardless of whether management wanted overtime work to be performed. Accordingly, PASS is distinguishable from the instant case, and the Agency's reliance on that decision is misplaced.

      For the foregoing reasons, we conclude that the sections of the overtime and clarification agreements requiring the Agency to offer the overtime work of a [ v60 p468 ] position to the incumbents of that position before offering the work to employees in other positions constitute enforceable procedures under § 7106(b)(2) of the Statute. Thus, we find that the portion of the award enforcing those sections satisfies prong I of BEP.

3.     Prong II of BEP

      Where an arbitrator has determined that employees have been improperly denied opportunities to work overtime, an award directing the agency to pay affected employees backpay reconstructs what management would have done if management had acted properly. See United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 559 (1999). Here, if the Agency had not violated the sections of the parties' agreements, then incumbent employees who were improperly denied overtime would have been offered that overtime and paid for any overtime that they worked. Accordingly, the aspect of the award that directs the Agency to pay employees who would have worked overtime absent the Agency's contract violations satisfies prong II of BEP.

      The Arbitrator also required the Agency to take the steps necessary to determine which employees would have worked overtime during the relevant period. Specifically, the Arbitrator directed the Agency to "reconstruct its Saturday, Sunday, holiday and AWS schedules" for the pertinent time period and determine how much overtime would have been worked by the volunteer incumbents. Award at 20. The Agency provides no basis for finding that it would not have constructed these schedules in making overtime assignments in the first instance.

      With regard to the Agency's assertion that the Arbitrator could not "defer to compliance" a determination of which specific employees were affected, Agency Exceptions at 12 n.4, the decision cited by the Agency does not support its claim. In this connection, in United States DOD, Tex. Nat'l Guard, Austin, Tex., 59 FLRA 437, 439 (2003) (Member Pope dissenting in pertinent part), a majority of the Authority set aside, for failure to meet prong II of BEP, an award compensating the grievant for certain work. That decision did not hold that an arbitrator is precluded from delaying, until compliance proceedings, a determination as to which specific employees are affected by a violation, and the Agency provides no other basis for finding that an arbitrator is precluded from doing so. Finally, with regard to the Agency's claim that the Arbitrator could not offer the parties the opportunity to settle this matter, the award does not require the Agency to settle; the award merely makes that option available, and the Agency provides no basis for concluding that, in this respect, the award is deficient.

      For the foregoing reasons, the award reconstructs what management would have done if it had not violated the parties' agreements and, thus, satisfies prong II of BEP. Accordingly, we deny the Agency's exception.

VI.     Decision

      The exceptions are denied.



Footnote # 1 for 60 FLRA No. 92

   The Arbitrator resolved, or refused to resolve, several matters that are not at issue here. See Award at 10, 12, 14-15. As neither party excepts to these aspects of the award, we do not address them further.


Footnote # 2 for 60 FLRA No. 92

   Although the Arbitrator did not specify which section he was interpreting, the record supports a conclusion that he was interpreting the section of the clarification agreement stating: "Once the overtime is allocated AFGE employees can work the overtime anytime during the hours stated in the agreement." Award at 5 (emphasis in award). We note that the Union specified this section in its post-hearing brief to the Arbitrator. See Union Exceptions, Attachments, Tab 11 at 16. We also note that the "hours stated in the [overtime] agreement[]" are "between the hours of 3:00 PM and 8:30 PM" for "daily overtime" and "between the hours of 6:30 AM and 5:30 PM" for Saturday, Sunday or holiday overtime. Award at 5.


Footnote # 3 for 60 FLRA No. 92

   Although the Arbitrator did not specify which sections he was interpreting, the record supports a conclusion that he was interpreting the following sections of the overtime agreement:

Each hearing office will maintain rotational rosters of bargaining unit employees arranged by service computation date for each position for use of overtime worked.
When the allocation of overtime for a position exceeds the number of volunteers, the excess hours may be offered to other bargaining unit employees by use of rotational rosters. . . .
Whenever possible [in cases where daily overtime is offered], employees will be given 2 days notice of the number of hours allocated to the hearing office, by position.

   Award at 5 (emphasis in award). These are the sections that were specified by the Union in its post-hearing brief to the Arbitrator. See Union Ex