U.S. Customs Service Laredo and National Treasury Employees Union Chapter 145 (Authority decision, February 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

Customs denied two female inspectors' requests to exchange shifts with male inspectors because the resulting shifts would have no female inspector available for personal searches of female suspects. An arbitrator ordered the exchanges allowed, reasoning that other staffing options could cover those searches. The Authority held that the award replaced management's judgment about qualifications for this work assignment and interfered with its right to assign work. It set aside the award.

Decision snapshot

• Authority: Work-assignment right under 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Shift-exchange arbitration award set aside.
• Key point: The arbitrator could not substitute his assessment of staffing alternatives for management's qualification decision.

Full text (FLRA public release)

[ v17 p68 ]

17:0068(17)AR

The decision of the Authority follows:

17 FLRA No. 17

U.S. CUSTOMS SERVICE,
LAREDO, TEXAS
Activity

and

CHAPTER 145, NATIONAL
TREASURY EMPLOYEES UNION
Union

Case No. O-AR-544

DECISION

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 (1983).

Accordingly, the award is set aside. Issued, Washington, D.C., February 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

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/1/ The provisions pertinently provide that subject to approval, qualified employees shall be allowed to exchange shifts and overtime assignments.