Department of the Navy, Naval Computer and Telecommunications Area Master Station, Atlantic Detachment Cutler, Cutler, Maine and American Federation of Government Employees, Local 2635, 0-AR-3603, June 4, 2003, 58 FLRA No. 140.

FLRA set aside an award in which the arbitrator awarded overtime pay to two grievants after finding that the agency, in assigning a military guard to cover two vacant shifts, had violated an oral agreement requiring that half of vacant guard shifts be assigned to civilian guards on overtime and half to a military guard. The award didn't satisfy prong I of the BEP framework because there was no basis in the record for finding that the oral agreement, as interpreted by the arbitrator, was negotiated under § 7106(b).

The parties had reached an oral agreement that when a guard shift became vacant, the agency would assign half of the shift to a civilian guard on overtime and half to a military guard. When a guard was absent from work for two days, the agency assigned a military guard to cover the two shifts. Two civilian guards filed grievances, claiming that they should have received overtime assignments to cover half the two shifts. The matter was referred to arbitration.

The arbitrator found that the agency violated the oral agreement. In his view, that agreement required the agency to assign four hours of each shift to bargaining unit employees. As a remedy he awarded the two grievants four hours of overtime pay each. The agency filed exceptions, to which the union filed no objections, in which the agency claimed that the oral agreement wasn't negotiated pursuant to § 7106(b).

Because the award required the agency to assign overtime in an amount equivalent to half of a shift (i.e., four hours) and precluded the agency from assigning those four hours of overtime to nonunit employees, FLRA found that the award affected management's right to assign work.

Management's right to assign work under § 7106(a)(2)(B) of the Statute, includes the right to assign overtime and determine when that overtime will be performed. SSA, S.E. Program Serv. Ctr., Birmingham, Ala., 55 FLRA 320, 321 (1999) (SSA). Restricting management's ability to assign certain overtime work to nonunit employees also affects that right. AFGE, AFL-CIO, Local 2317, 29 FLRA 1587, 1593 (1987).

Because the award affected a management right, FLRA applied the BEP test. Under Prong I of that test, FLRA determines whether the award provides a remedy for a violation of either an "applicable law" within the meaning of § 7106(a)(2), or a contract provision negotiated pursuant to § 7106(b).

FLRA went on to find that there was nothing in the record establishing that the oral agreement, as interpreted by the arbitrator, was a § 7106(b) provision. FLRA noted, in this connection, that the union didn't argue that the oral agreement was negotiated pursuant to § 7106(b). Moreover, FLRA had previously found provisions similar to the oral agreement not to be § 7106(b) provisions. It cited, in this connection, Bureau of Prisons, 53 FLRA 165, 170-71 (1997) (provision restricting assignment of certain work to bargaining unit not a § 7106(b)(3) "appropriate arrangement"); Philadelphia Naval Shipyard, 35 FLRA 990, 996 (1990) (overtime provision not a § 7106(b)(1) "staffing pattern/methods, means" provision); and Mint Council, 19 FLRA 640, 641-42 (1985) (requiring guarantee of at least four hours overtime isn't a § 7106(b)(2) "procedure").

In sum, the award was deficient because it didn't satisfy Prong I of the BEP test and was accordingly set aside.