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
                                            Case No. 0-AR-615
    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