09:0392(47)AR - Army Missile Command, Redstone Arsenal, AL and AFGE Local 1858 -- 1982 FLRAdec AR



[ v09 p392 ]
09:0392(47)AR
The decision of the Authority follows:


 9 FLRA No. 47
 
 UNITED STATES ARMY MISSILE
 COMMAND, REDSTONE ARSENAL,
 ALABAMA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1858
 Union
 
                                            Case No. O-AR-204
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR HENRY B. WELCH FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE AGENCY FILED AN
 OPPOSITION.
 
    THE DISPUTE IN THIS MATTER AROSE FOLLOWING A REORGANIZATION BY THE
 ACTIVITY IN THE U.S. MISSILE AND MUNITIONS CENTER AND SCHOOL.  THE
 REORGANIZATION RESULTED IN THE ADDITION OF 38 MILITARY INSTRUCTOR
 POSITIONS AND THE LOSS OF 45 CIVILIAN INSTRUCTOR POSITIONS.  A GRIEVANCE
 WAS FILED AND THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    IN RESOLVING THE GRIEVANCE THE ARBITRATOR EXPRESSLY ADDRESSED THE
 ARGUMENTS RAISED BY THE UNION.  ON THE BASIS OF THE EVIDENCE PRESENTED,
 THE ARBITRATOR DETERMINED THAT THERE HAD BEEN NO CONVERSIONS OF CIVILIAN
 POSITIONS TO MILITARY POSITIONS IN VIOLATION OF ARMY REGULATION (AR)
 570-4.  THE ARBITRATOR FURTHER DETERMINED THAT THE ACTIVITY'S USE OF
 EXCESS MILITARY PERSONNEL DID NOT VIOLATE ANY APPLICABLE AGENCY
 REGULATION.  FINALLY, IN RELIANCE ON THERE BEING NO LIMITATION IN 5 CFR
 PART 316 AND FPM CHAPTER 316 ON THE NUMBER OF TIMES AN EMPLOYEE MAY
 SERVE UNDER A TEMPORARY APPOINTMENT, THE ARBITRATOR DETERMINED THAT
 THERE WAS NO VIOLATION OF THESE REGULATIONS BY THE ACTIVITY IN ITS USE
 OF TEMPORARY EMPLOYEES.  ACCORDINGLY, AS HIS AWARD THE ARBITRATOR DENIED
 THE GRIEVANCE.
 
    IN ITS EXCEPTION THE UNION PRINCIPALLY CONTENDS THAT IN DETERMINING
 THAT THE ACTIVITY HAD NOT VIOLATED APPLICABLE REGULATIONS, THE
 ARBITRATOR MISINTERPRETED AND MISAPPLIED THESE REGULATIONS. IN SUPPORT
 OF THIS EXCEPTION, THE UNION STATES THAT "(T)HE RECORD CLEARLY
 ESTABLISHES" THAT CIVILIAN POSITIONS WERE CONVERTED TO MILITARY
 POSITIONS IN VIOLATION OF DEPARTMENT OF DEFENSE REGULATION 1400.5.  AS
 FURTHER SUPPORT AND IN REPETITION OF THE ARGUMENTS REJECTED BY THE
 ARBITRATOR, THE UNION STATES THAT "(T)HERE CAN BE NO QUESTION" THAT THE
 ACTIVITY'S USE OF MILITARY PERSONNEL WAS PROHIBITED BY AR 570-4 AND THAT
 IT IS "CLEARLY ESTABLISHE(D)" THAT THE ACTIVITY'S USE OF TEMPORARY
 EMPLOYEES WAS PROHIBITED BY 5 CFR PART 316 AND FPM CHAPTER 316.
 
    THE UNION'S EXCEPTION FAILS TO ESTABLISH THAT THE ARBITRATOR'S AWARD
 IS DEFICIENT.  AS NOTED, THE ARBITRATOR, ON THE BASIS OF THE EVIDENCE,
 EXPRESSLY DETERMINED THAT IN THE CIRCUMSTANCES PRESENTED THE ACTIVITY
 HAD NOT CONVERTED CIVILIAN POSITIONS TO MILITARY POSITIONS IN VIOLATION
 OF AGENCY REGULATION AND THE ACTIVITY'S USE OF MILITARY PERSONNEL AND
 TEMPORARY EMPLOYEES WAS NOT CONTRARY TO APPLICABLE REGULATIONS.  THE