18:0099(20)AR - Justice, INS, Western Regional Office, San Pedro, CA and AFGE, INS Council, Western Region, Local 2805 -- 1985 FLRAdec AR
[ v18 p99 ]
The decision of the Authority follows:
18 FLRA No. 20 U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, WESTERN REGIONAL OFFICE, SAN PEDRO, CALIFORNIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, WESTERN REGION, LOCAL 2805 Union Case No. 0-AR-615 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Carroll R. Daugherty filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. /1/ The grievance in this case concerns management's practice of not providing to criminal investigators training during duty time in customs and agricultural law. Training in customs and agricultural law is required for employees in the position of immigration inspector but not criminal investigator. However, such training is necessary in order for a criminal investigator to be eligible to volunteer for overtime assignments of the duties of immigration inspector. A grievance was filed and submitted to arbitration primarily on the issue of whether management violated Article 15 of the parties' collective bargaining agreement /2/ when it refused to provide such training during duty time to the grievant, a criminal investigator, who consequently obtained the training partly during nonduty time and partly while on approved annual leave. The Arbitrator first noted that employees in two other job classifications, immigration examiner and deportation officer, were provided training in customs and agricultural law during duty time. The Arbitrator at the same time acknowledged that the job description of both the position of immigration examiner and deportation officer included as secondary duties the duties of the position of immigration inspector, while the position description of the position of criminal investigator made no reference to the duties of immigration inspector. In this regard the Arbitrator determined that management's decision not to assign immigration inspector duties to criminal investigators was not a reasonable basis on which to have denied the training request of the grievant. In the Arbitrator's judgment this constituted discrimination against the grievant in relation to employees in the job classifications of immigration examiner and deportation officer and constituted a violation of Article 15 of the agreement in that the assignment of training had not been "equitable" as required. Because the Arbitrator found on this basis that the training should have been provided the grievant during duty time and therefore constituted hours of work, the Arbitrator as a remedy ordered the grievant compensated at the overtime rate for the training during nonduty time and ordered the grievant's leave restored for the training while on approved leave. As one of its exceptions, the Agency contends that the award is deficient as contrary to section 7106(a) of the Statute. Specifically, the Agency contends that the Arbitrator enforced the parties' collective bargaining agreement so as to interfere with management's right to assign work under section 7106(a)(2)(B). The Authority agrees. The Authority has repeatedly recognized that the plain language of section 7106 provides that "nothing" in the Statute shall "affect the authority" of an agency to exercise the rights enumerated in that section. E.g., American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70, 79 (1981), aff'd sub nom. AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied 103 S.Ct. 2085 (1983). Therefore, the Authority has consistently held that no arbitration award may improperly deny an agency the authority to exercise its rights under that section or result in the substitution of the arbitrator's judgment for that of the agency in the exercise of those rights. Id.; National Treasury Employees Union and U.S. Customs Service 17 FLRA No. 12 (1985); U.S. Customs Service, Laredo, Texas and Chapter 145, National Treasury Employees Union, 17 FLRA No. 17 (1985). Section 7106(a)(2)(B) of the Statute, in particular, reserves to management officials the authority to assign work. Furthermore, the Authority has held that the assignment of training during the duty time of employees constitutes an exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute. E.g., National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 591 (1981). Encompassed within this right is the discretion to determine which employees will receive particular assignments to duties, Veterans Administration Hospital, Lebanon, Pennsylvania and American Federation of Government Employees, AFL-CIO, Local 1966, 11 FLRA 193 (1983), and the discretion to take into account valid considerations in making work or training assignments, see National Treasury Employees Union and Internal Revenue Service, Dallas District, 13 FLRA 48 (1983) (union proposal 1). Thus, in IRS, Dallas the Authority found that a proposal which would require that work be assigned "on an equitable basis, without regard to . . . group" negated the discretion inherent in the assignment of work and consequently directly interfered with management's right under section 7106(a)(2)(B) of the Statute. Id. at 49. In terms of this case, the Authority similarly finds that the award by its means of enforcing the requirement of the parties' agreement that the assignment of training be equitable is contrary to section 7106(a)(2)(B) as an improper interference with management's right to determine which employees will receive particular assignments of duties and management's right to assign training during duty time. As noted, management's practice was not to provide to criminal inspectors during duty time the training in customs and agriculture law that was necessary to perform the duties of immigration inspector. The expressed basis for the practice as acknowledged by the Arbitrator was that in contrast to immigration examiners and deportation officers, criminal investigators are not required to perform the duties of immigration inspector as part of their job description. However, the Arbitrator has negated the exercise by management of the discretion inherent in the assignment of work and training during duty time when he ruled that there was no reasonable basis for management's determination not to assign immigration inspector duties to criminal investigators and that consequently it was not equitable for management to have considered the duties assigned to criminal investigators in denying the grievant her requested training. See id. at 49. In so enforcing the agreement, the Arbitrator has substituted his judgment for that of management as to which job categories will be assigned particular duties and will be assigned particular training during duty time in order to perform those duties. Consequently, the Authority finds that the award is deficient as contrary to section 7106(a)(2)(B) and is set aside. /3/ Issued, Washington, D.C., May 24, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Office of Personnel Management (OPM) filed a brief as an amicus curiae. The Union filed oppositions to both the Agency's exceptions and OPM's amicus curiae brief. In its opposition to the Agency's exceptions, which were filed by the Department of Justice, the Union claims that the exceptions should be dismissed because the Department of Justice is not a party entitled to file exceptions. However, the Authority finds that the exceptions have been properly filed by the Agency on behalf of one of its organizational elements. E.g., American Federation of Government Employees, Local 1917 and United States Immigration and Naturalization Service, 15 FLRA No. 147 (1984). /2/ At all relevant times Article 15 of the parties' collective bargaining agreement pertinently provided: C. The nomination of employees to participate in training and career development programs and courses shall be based on Service needs and will be fair, equitable and free of personal favoritism. /3/ In view of this decision it is unnecessary for the Authority to resolve the Agency's other exceptions to the award.