18:0780(94)AR - NTEU and Customs Service -- 1985 FLRAdec AR

 18 FLRA No. 94
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Union 
 
 and 
 
 U.S. CUSTOMS SERVICE
 Agency
 
                                            Case No. 0-AR-687
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Gary L. Axon 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 grievance in this case concerns whether the Activity could choose
 to assign customs inspectors working a Sunday or holiday overtime tour
 of duty to work involuntarily an additional overtime assignment of short
 duration commencing after the full tour of duty has been completed.  The
 Arbitrator determined that the additional overtime assignment was a
 separate new assignment that was required to be assigned in accordance
 with the established practice and procedures formally recognized in
 Article 5 of the parties' supplemental agreement.  In addition, the
 Arbitrator awarded backpay to those employees denied the overtime work
 in dispute.
 
    In its first exception the Agency contends that the award is contrary
 to section 7106(a)(2)(A) and (B) of the Statute.  Specifically, the
 Agency argues that by directing that that the disputed assignment be
 staffed in accordance with established procedures, the award interferes
 with management's right to assign and direct employees, to assign work,
 and to determine the personnel by which agency operations shall be
 conducted.  The Authority finds that this exception provides no basis
 for finding the award deficient.
 
    As relevant to the Agency's exception, management's rights under
 section 7106(a)(2)(A) of the Statute encompass management's discretion
 to establish the qualifications necessary to perform the duties
 generally assigned to the customs inspector position and to determine
 whether an employee meets those qualifications.  E.g., American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 612-13
 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140
 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945
 (1982).  Similarly, management's rights in this regard under section
 7106(a)(2)(B) encompass the discretion to establish the particular
 qualifications and skills needed to perform the work 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, 760 (1982).  However, the
 Authority has expressly held that when two or more employees are equally
 qualified and capable of performing the work, the selection of any one
 of those employees to perform the work would be consistent with
 management's exercise of its discretion in accordance with section
 7106(a).  In these circumstances the procedure by which employees
 previously judged by management to be equally qualified will be selected
 to perform the work is negotiable under section 7106(b)(2) of the
 Statute, id., and when negotiated by the parties is enforceable by
 grievance and arbitration, see Department of Health and Human Services,
 Social Security Administration, Charlotte, North Carolina District and
 American Federation of Government Employees, Local 3509, AFL-CIO, 17
 FLRA No. 21 (1985);  Internal Revenue Service, Austin District and
 National Treasury Employees Union, NTEU Chapter 22, 9 FLRA 672 (1982).
 In terms of this case, the Authority finds that the Arbitrator has
 simply enforced the established procedures of the parties' supplemental
 agreement providing for the selection of a particular customs inspector
 to perform the customs inspection work management has determined will be
 performed on overtime and providing for separate assignment procedures
 for overtime in excess of eight hours.  Thus, the Agency has failed to
 establish that the award is contrary to section 7106(a) of the Statute.
 See id.; VA National Cemetery Office.
 
    In its second exception the Agency contends that the award is
 contrary to section 7106(b)(1) of the Statute because the Arbitrator
 relied on a past practice.  However, as has been noted, the Arbitrator
 specifically found that the parties formally recognized in Article 5,
 Section 5B of the supplemental agreement the established practice and
 procedures for the assignment of overtime, and as his award he simply
 enforced that negotiated agreement of the parties.  Accordingly, the
 Authority finds that this exception constitutes disagreement with the
 Arbitrator's interpretation and application of the collective bargaining
 agreement and provides no basis for finding the award contrary to
 section 7106(b)(1) of the Statute.  See Local 1917, American Federation
 of Government Employees and United States Immigration and Naturalization
 Service, Eastern Region, 13 FLRA 77 (1983).
 
    Accordingly, the Agency's exceptions are denied.  Issued, Washington,
 D.C., June 28, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY