37:0639(47)AR - - Justice, INS and AFGE, National INS Council, Local 1917 - - 1990 FLRAdec AR - - v37 p639



[ v37 p639 ]
37:0639(47)AR
The decision of the Authority follows:


37 FLRA No. 47

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL

LOCAL 1917

(Union)

0-AR-1767

DECISION

September 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator J. Fredrik Ekstrom filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.

The grievance concerned the Agency's detail of the grievants, who are Deportation Officers (DPOs), to perform guard duties. The Arbitrator determined that: (1) the parties' collective bargaining agreement required the Agency to provide the grievants with training; and (2) the training of the grievants was deficient. As his award, the Arbitrator directed the Agency, among other things, to provide training on a biweekly basis to employees assigned to the detail. The Agency excepts only to the portion of the Arbitrator's award that requires it to provide training to the detailed employees on a biweekly basis.

For the reasons discussed below, we find that the award is not contrary to law, rule or regulation. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Interim and Final Awards

The grievance in this case involves Deportation Officers detailed to the Agency's Alien Detention Center (Service Processing Center or SPC) to perform guard duties. As background to his award, the Arbitrator noted an August 1986 article published in the New York Times concerning security problems at this facility. The article indicated that the types of prisoners detained at the SPC had changed, and that: (1) 116 of the 173 prisoners had criminal backgrounds; (2) 77 prisoners had been convicted of violent crimes; and (3) 25 prisoners had escaped between June 1985 and June 1986. Interim Award at 4. The article also indicated that "the center was not designed to handle dangerous criminals and that its security guards were not trained as correction officers." Id. Subsequently, six detainees escaped and the Agency detailed DPOs to perform guard duties at the SPC until July 31, 1987. Id.

A grievance was filed concerning the training, tours of duty, performance appraisals, and entitlement to overtime of DPOs detailed for extended periods to perform guard duties at the SPC. The grievance was submitted to arbitration on the following stipulated issue:

Did the Service violate Articles 15 (F), 17 (H), 17 (J), 28 (B)(1) and (2), 29A(1), 29B, 29D, 29E and 42B(4) when it detailed Deportation Officers to the Service Processing Center? Was the detail conducted in accordance with the Negotiated Agreement and other person[ne]l regulations? If not what shall the remedy be?

Id. at 1.

On September 29, 1988, the Arbitrator issued his interim award in this case. As his interim award, the Arbitrator directed the Agency to post tours of duty in accordance with the parties' agreement. The Arbitrator also directed the parties to provide detailed information concerning the work records of the grievants and the performance appraisal process in order to properly evaluate the grievants' asserted loss of overtime and the Union's request for preferential performance appraisal treatment for the grievants. Id. at 19-20. Finally, the Arbitrator requested that he be given an opportunity to meet with the parties. Id.

As to the portion of the grievance concerning training, the Arbitrator determined that Article 17(H) of the parties' collective bargaining agreement required the Agency to provide the grievants with training. Id. at 19. Article 17(H) of the parties' agreement provides as follows:

When duties involving special hazards must be performed, the Service will provide reasonable training or indoctrination to the employees involved concerning the hazards and proper work methods to be used. When the employee believes he is being required to work under conditions which are unsafe or unhealthy beyond normal hazards inherent in the operation in question, he shall refer the matter to his supervisor. The supervisor will make an evaluation of the working conditions and direct that the work either be continued or stopped.

Id. at 2.

The Arbitrator noted testimony of the grievants which indicated that their normal jobs were very different from those which they performed on the detail at the SPC, that they had not performed the duties required by the detail before, and that their training was inadequate. Id. at 6-8. He found that "riot training can hardly be considered adequate or reasonable for duty at SPC" and sustained the Union's claim in this instance. Id. at 14.

On February 3, 1989, the Arbitrator issued his final award, which incorporated the findings made in the interim award. The Arbitrator denied the Union's request for preferential treatment and directed the Agency to take certain actions with respect to the scheduling of employee work shifts, providing opportunities for employees to earn overtime and employee performance ratings. Final Award at 11-12. As to the training issue, the Arbitrator found that the Agency had not provided the detailed DPOs with adequate or proper training. The Arbitrator stated:

To suggest that the fifteen minutes prior to a shift is sufficient training is contrary to every concept I have learned about correctional officer--prisoner problems, issues and relationships in a volatile situation.

Id. at 10.

Accordingly, based on his determinations that: (1) the collective bargaining agreement required the Agency to provide reasonable training to the detailed employees; and (2) the training provided by the Agency to the grievants was inadequate, the Arbitrator found that the Agency violated Article 17(H) of the parties' agreement and made the following award:

When DPOs are assigned to details at SPC . . . the [Agency] shall provide on a bi-weekly basis, training concerning the various aspects of issues and problems faced by personnel while stationed at that location.

Id. at 11.

III. Agency's Exceptions

The Agency contends that the portion of the award concerning training violates management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency notes that proposals which require an agency to provide specific types of training to employees and proposals which require management to provide the type of training directed by the Arbitrator's award--orientation--are outside the duty to bargain because they interfere with management's right to assign work. The Agency asserts that the disputed portion of the award requires it to provide biweekly training to employees assigned to the SPC and that the award should therefore be set aside because it interferes with management's right to assign work. Exceptions at 11-12.

The Agency also argues that the Arbitrator substituted his judgment for that of management concerning the amount of training that was reasonable. The Agency states that, by requiring employees to be provided on a biweekly basis with "reasonable training . . . concerning the hazards and proper work methods to be used," the award is inconsistent with section 7106 of the Statute. Id. at 12.

The Agency further contends that consideration of whether the Arbitrator's award constitutes an appropriate arrangement is not warranted because: (1) the Union did not contend that the disputed portion of the award was an appropriate arrangement; and (2) the Arbitrator did not analyze the disputed provision as an appropriate arrangement in his award. Id. at 13. The Agency also asserts that no "anomalous" or "conflicting" results would occur if the Authority did not reach the appropriate arrangement issue because, to its knowledge, there are no decisions that hold a provision, like the disputed portion of the Arbitrator's award, to be an appropriate arrangement. Id. at 14.

Alternatively, however, the Agency contends that the Arbitrator's award is not an appropriate arrangement because the disputed portion of the award: (1) concerns the establishment of new job requirements which, because such requirements simply make employees' jobs more demanding, is not a proper subject of an appropriate arrangements analysis; and (2) dictates who will be trained--employees detailed to the SPC--and the frequency of the training--biweekly--and thus excessively interferes with management's right to assign work. Id. at 15-16.

Finally, because the Arbitrator directed that training be provided to all employees assigned to the SPC, the Agency argues that the Arbitrator's award is inconsistent with 5 C.F.R. § 410.301(c)(1), a Government-wide regulation, which prohibits the provision of training to employees who do not need it. According to the Agency, although the Arbitrator may have determined that the grievants needed the training which the award directs, he did not determine whether all employees assigned to the SPC needed the training provided for in the award. Id. at 20.

IV. Analysis and Conclusions

A. The Arbitrator's Award Is Not Contrary to Law

In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA No. 20 (1990) (U.S. Customs Service), the Authority reexamined and defined the approach that is to be used when an agency contends that an arbitrator's award enforcing an agreement provision is contrary to section 7106(a) of the Statute. The Authority held as follows:

[W]e will examine the provision enforced by the arbitrator to determine (1) if it constitutes an arrangement for employees adversely affected by the exercise of managements rights, and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right.

. . . .

If it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Consequently, we will not find that the award is contrary to law, and we will deny the exception. If the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law under section 7122(a) of the Statute; the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator will not be affected.

Id., slip op. at 6.

Applying that approach in this case, we find that the Agency fails to establish that the award is contrary to law. Rather, the Arbitrator has interpreted and enforced a provision of the parties' collective bargaining agreement which constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work. The Agency agreed in Article 17(H) of the parties' agreement to provide "reasonable" training to employees in situations involving special hazards. See Interim Award at 2. Although the Agency had previously provided DPOs with some training regarding the hazardous circumstances of details to the SPC, the Arbitrator found that the Agency had failed to provide adequate training to the grievants when they were assigned duties at the SPC. The Arbitrator determined that Article 17(H) of the agreement required the Agency to provide training to the DPOs assigned to the SPC. The Arbitrator, therefore, merely interpreted and enforced an arrangement negotiated by the parties when he directed that the DPOs detailed to the SPC be provided with training on a biweekly basis.

Further, we find that, as interpreted and applied by the Arbitrator, the provision (Article 17(H)) does not abrogate the Agency's right to assign work under section 7106(a). In U.S. Customs Service, the Authority held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. U.S. Customs Service, slip op. at 6. Although the provision of training has been held to be included in the right to assign work, the Arbitrator's award does not preclude the Agency from exercising its right. Rather, the award only requires the Agency to comply with Article 17(H) in which it agreed to provide reasonable training for employees exposed to special hazards. The award merely provides interpretation and enforcement by the Arbitrator of the arrangement agreed to by the parties. Accordingly, we conclude that the provision, as interpreted and applied by the Arbitrator, does not abrogate the exercise of the Agency's right to assign work under section 7106(a). Consequently, the Agency's exception provides no basis for finding the award contrary to section 7106(a). See U.S. Customs Service, slip op. at 9.

B. The Arbitrator's Award Does Not Conflict With 5 C.F.R. § 410.301(c)(1), A Government-wide Regulation

The Agency contends that the Arbitrator's award conflicts with 5 C.F.R. § 410.301(c)(1) because "[i]t violates Federal regulations to provide training to employees who do not need the training." Exceptions at 20. The Agency also asserts that the Arbitrator "ordered that all employees assigned to the SPC to be given additional training." Id. at 19. We disagree.

Under 5 C.F.R. § 410.301(c) agency heads are required to assure that:

(c) Training programs established by the agencies under chapter 41 of title 5, United States Code, to the maximum extent feasible:

(1) Be based on short- or long-range needs, existing or reasonably foreseeable[.]

That provision does nothing more than require that an agency establish training programs that are based on some need-- either short-range or long-range. We note that the Agency in this case does not argue that there was no need for the DPOs detailed to the SPC to be provided with training.

Further, the Arbitrator did not determine that "all employees assigned permanently to the SPC" would be provided training by the Agency. Instead, the Arbitrator required the Agency to provide training to the DPOs assigned on detail to the SPC. Final Award at 11. Accordingly, there is no basis on which to conclude that the Arbitrator did not consider the "needs" of either the DPOs or the Agency in arriving at his award.

Consistent with the parties' agreement, the Arbitrator simply required the Agency to provide reasonable trai