NTEU and U.S. Customs Service (Authority decision, June 28, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An arbitrator enforced negotiated procedures for assigning Sunday and holiday overtime to customs inspectors. The Authority found that the award selected inspectors for work management had already decided to perform. It rejected the agency's management rights and past practice objections and denied its exceptions.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Agency exceptions denied; overtime award left in place.
• Key point: The agreement controlled which inspector received an already chosen overtime assignment.

Full text (FLRA public release)

[ v18 p780 ]

18:0780(94)AR

The decision of the Authority follows:

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