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17:0068(17)AR - Customs Service, Laredo, TX and Chapter 145, NTEU -- 1985 FLRAdec AR

[ v17 p68 ]
The decision of the Authority follows:

 17 FLRA No. 17
                                            Case No. O-AR-544
    This matter is before the Authority on exceptions to the award of
 Arbitrator A. Dale Allen, Jr. 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.
    The dispute in this matter concerns the denial of the requests of two
 female customs inspectors to exchange shifts with two male customs
 inspectors.  The exchange requests were denied on the basis that the
 shifts requested to be exchanged would have been left without a female
 customs inspector on duty to conduct personal searches of female
 suspects.  Grievances were filed and submitted to arbitration claiming
 that in denying the exchanges the Activity had violated provisions of
 the parties' collective bargaining agreement.  /1/
    Before the Arbitrator, the Activity argued that there could be no
 violation of the collective bargaining agreement because the shift
 exchange provisions pertained only to qualified employees.  In this
 regard the Activity explained that the very nature of the agency mission
 demands assignment by sex in some instances and that with respect to
 personal searches, an employee of a specific sex becomes the category of
 employee which must be ordered and assigned to conduct a personal search
 depending on the sex of the person waiting to be searched.  Thus, the
 Activity contended that when, as in this case, the employee requesting
 the shift exchange is the only woman assigned to the shift, only other
 women are qualified employees for shift exchange purposes.  The
 Arbitrator agreed with the Activity insofar as personal searches are
 concerned that sex is a valid basis and qualification for the
 assignment.  However, the Arbitrator rejected the necessity for the
 assignment of a female inspector to the shifts sought to be exchanged.
 He indicated that the incidence of personal searches of females is low
 and that the Activity has other alternatives:  use of females from other
 federal agencies, from local law enforcement agencies, from the
 deputizing of civilians, and from call-back overtime of a female
 inspector.  Accordingly, as his award the Arbitrator sustained the
 grievances and directed that as long as present conditions prevail, the
 type of shift exchanges involved in this case are to be granted.
    As one of its exceptions, the Agency contends that the award is
 contrary to management's right to assign work under section
 7106(a)(2)(B) of the Statute.  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., Professional Air Traffic Controllers Organization and
 Federal Aviation Administration, 5 FLRA 763, 767 (1981).  Therefore, the
 Authority has consistently held that no arbitration award may interpret
 or enforce a provision of a collective bargaining agreement so as to
 improperly deny an agency the authority to exercise its rights under
 that section, id., or so as to result in the substitution of the
 arbitrator's judgment for that of the agency in the exercise of those
 rights, e.g., American Federation of Government Employees, AFL-CIO,
 Local 2782 and Department of Commerce, Bureau of the Census, Washington,
 D.C., 6 FLRA 314, 321 (1981).  Section 7106(a)(2)(B) of the Statute, in
 particular, reserves to management officials the authority to assign
 work.  Encompassed within that authority is the discretion to establish
 the particular qualifications needed to perform the work assignment to
 be done and to exercise judgment in determining whether a particular
 employee meets those qualifications.  Laborers International Union of
 North America, AFL-CIO, Local 1276 and Veterans Administration, National
 Cemetery Office, San Francisco, California, 9 FLRA 703, 706 (1982).  In
 terms of this case, as already noted, the Activity denied the disputed
 shift exchanges because it determined that the employees who were to
 exchange with the grievants were not qualified.  Thus, the Arbitrator
 has negated the exercise by management of its right to establish
 qualifications and to determine whether particular employees meet those
 qualifications when the Arbitrator, as the award, sustained the
 grievances and directed that as long as present conditions prevail, the
 type of shift exchanges involved in this case are to be granted.  In so
 directing, the Arbitrator has substituted his judgment for that of the
 Activity as to which employees are qualified for a particular work
 assignment and compels the Activity to treat male and female customs
 inspectors as functional equivalents when the Activity has determined
 otherwise in order that the work assignment of personal searches may be
 accomplished regardless of the sex of the suspect.  Consequently, the
 Authority finds that the award interferes with management's right to
 assign work and is therefore contrary to section 7106(a)(2)(B).  See
 Veterans Administration Hospital, Lebanon, Pennsylvania and American
 Federation of Government Employees, AFL-CIO, Local 1966, 11 FLRA No. 43
    Accordingly, the award is set aside.  Issued, Washington, D.C.,
 February 28, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The provisions pertinently provide that subject to approval,
 qualified employees shall be allowed to exchange shifts and overtime