18:0099(20)AR - Justice, INS, Western Regional Office, San Pedro, CA and AFGE, INS Council, Western Region, Local 2805 -- 1985 FLRAdec AR

 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.