33:0385(49)AR - - Michigan Air NG, Selfridge ANG Base Michigan and ACT, Michigan State Council - - 1988 FLRAdec AR - - v33 p385

[ v33 p385 ]
The decision of the Authority follows:

33 FLRA No. 49











October 26, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Patrick A. McDonald. The Arbitrator found that the Michigan Air National Guard, Selfridge ANG Base Michigan (the Agency) violated Article VIII, Section 8 of the parties' Labor Agreement by denying the Grievant a civilian Temporary Duty Assignment (TDY) to Rhode Island because she was on the Weight Management Program (WMP) list. Award at 18.

The Agency filed exceptions 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 Association of Civilian Technicians, Michigan State Council (the Union) filed an opposition to the Agency's exceptions.

For the reasons discussed below, we find that the award is inconsistent with management's right to assign work and to determine the qualifications needed to perform the work under section 7106(a)(2)(B) of the Statute. Therefore, the award will be set aside.

II. Background and Arbitrator's Award

The Grievant is employed by the Michigan Air National Guard as a technician. She is required, as a condition of her technician employment, to be a military member of the National Guard. Beginning in 1986, all Technicians were required to wear the military uniform in conjunction with their employment. The Agency administers a Weight Management Program (WMP) pursuant to Air Force Regulation 35-11 and Air National Guard Regulation 35-11. In August 1987, the Grievant was denied a civilian TDY because she was on the WMP list.

Article VIII, Section 8 of the parties' Labor Agreement provides that each work unit maintain a seniority list for exercises. This section also provides that when an employee has participated in an exercise, the employee is removed from the list until all employees in the work unit have participated or for 18 months. Award at 4.

The Agency's witnesses testified that the WMP was established because obesity detracts from effectiveness, health, appearance and discipline. Further, these witnesses stated that the Agency's policy was that personnel who were overweight were not sent on TDY exercises. Award at 6.

The Union alleged before the Arbitrator that a clear violation of the parties' Labor Agreement occurred. The Union argued that prior to the Grievant, no employee in the bargaining unit had ever been denied the right to participate in a civilian TDY exercise due to weight restrictions. Further, the Union contended that the Agency's reliance on the Air Force and Air National Guard Regulations is misplaced because they postdate the parties' Labor Agreement. Award at 9, 10.

The Agency argued before the Arbitrator that applicable Regulations provide that technicians are not eligible to travel if they exceed the maximum allowable weight for their height and age. Further, the Agency contended that the WMP has been administered since 1984 and that technicians have been notified of the requirements. The Agency also alleged that regular weight checks have been conducted in connection with specific temporary duty deployments. The Agency asserted that the fact that the WMP has been operable for an extended period of time without objection by the Union demonstrates a past practice and a mutuality of agreement over the program. In summary, the Agency asserted that no violation of the Labor Agreement occurred and that there was no change in existing past practice with regard to application of the WMP. Award at 11, 12.

The Arbitrator found that in "military TDY situations, it appears clear that the Weight Control Program has been administered in such a manner as to preclude those in the program from TDY assignments." Award at 16. He further found that in "civilian TDY situations, however, the evidence is less clear." Award at 17. He noted that "[m]any times the orders or DD Form 1610, do not mention compliance with the WMP." Id. Further, he noted that "Col. Millben, the Commanding Officer of the 190st CAM Squadron testified that his squadron does not regularly brief its personnel on such matters and that in two situations where he denied two technicians TDY trips, he had been overruled by his supervisor." Award at 17.

Consequently, the Arbitrator stated that "[u]nder these circumstances, I do conclude that the evidence of a past practice in this case is less than convincing as indicating a mutual agreement by the parties to overrule the express language of the Labor Agreement in terms of Article VIII, Section 8." Award at 17. The Arbitrator noted that during the regular workweek, technicians are required to wear the military uniform whether they are part of the WMP or not. He found that if the technicians are allowed and required to wear their uniforms in such a capacity, their appearance remains the same as when they go on a civilian TDY exercise. The Arbitrator concluded that there was no logic in the Agency's argument because the Agency was inconsistently arguing that "it is perfectly O.K. to allow and, indeed, require the technicians to wear the uniform during regular working hours despite certain individuals being overweight and part of the WMP" and that "to allow these same individuals to go on a civilian TDY exercise is detrimental to the organization." Award at 17, 18. The Arbitrator noted that "[w]hile I can understand the employer's point of view in terms of attempting to inculcate better military appearance, positive performance and public image, all of which are most desired, the fact remains that the language of the Labor Agreement is quite clear on this point." Award at 18. Therefore, the Arbitrator found that "[t]his coupled with the somewhat ambiguous practice, leads your Arbitrator to conclude that Article VIII, Section 8, has been violated by the Employer in this case." Id.

III. Exceptions

The Agency contends that the Arbitrator's award violates applicable Agency regulations and 5 U.S.C. §7122. The Agency also argues that the Arbitrator exceeded his authority under 5 U.S.C. §7103(a)(9) when he ruled that technicians do not need to observe weight standards which have an impact on military appearance while wearing the military uniform.

The Agency argues that the Arbitrator's award violates section 7106(a)(2)(B) of the Statute. The Agency argues that management has the right to assign work, which includes the right to determine the particular qualifications and skills needed to perform the work, and to determine whether a particular employee meets these qualifications. The Agency asserts that "{t}he determination of whether or not a technician is qualified to be considered for a TDY assignment is by Statute the right of management to render." Exceptions at 5. Because the Arbitrator substituted his judgment regarding qualifications for assignment for the judgment of management, the Agency maintains that the award interferes with management's right to assign work under section 7106(a)(2)(B).

IV. Opposition

Preliminarily, the Union objects to the submission to the Authority by the Agency of three affidavits which purport to identify "mistakes of fact" in the Arbitrator's recollection of the testimony given by the three witnesses. Opposition at 1. The Union contends that these enclosures are improper and should be stricken from the record for the following reasons: (1) the Authority's Rules and Regulations do not authorize the filing of affidavits, prepared following issuance of an award, which are designed solely to impeach any factual findings made by the Arbitrator; and (2) in analogous private sector contexts, such efforts to impeach the findings of an arbitrator have consistently been rejected.

The Union contends that the Agency's exceptions reflect nothing more than the Agency's disagreement with the Arbitrator's interpretation of the contract and, accordingly, are without merit. The Union asserts that the Arbitrator's award is not inconsistent with the provisions of ANGR 35-11, and AFR 35-11. The Union contends that AFR 35-11 does not affirmatively regulate how technicians are to be selected for participation in TDY's. Further, "[t]his provision is susceptible to the arbitrator's interpretation in his award, and, accordingly, his interpretation should be sustained." Opposition at 9, 10. The Union contends that ANGR 35-11 provides no basis for overturning the Award because it became effective after the current Labor Agreement. The Union argues that a regulation issued subsequent to a collective bargaining agreement may modify terms of the contract only if it is an "'Agency policy'" or "'regulation'" required by law. Opposition at 10. The Union argues that the above provision is neither an "'Agency Policy'" nor "'regulation'" required by law. Id. Further, the Union contends that ANGR 35-11 does not apply to civilian technicians in their civilian status because it is an Air Force regulation governing only military members of the Air Force.

The Union contends that there is no merit in the Agency's argument that the award should be overturned because it infringes on management's right to assign work. The Union notes that nowhere in Article VIII, Section 8 of the Labor Agreement does there exist the phrase "'if they are otherwise eligible.'" Opposition at 12. (emphasis in original) Consequently, the Union argues that the Agency's argument must fail because the Agency has shown neither that the Grievant was not otherwise eligible, nor that the award interferes with the assignment of work. Further, the Union asserts that the Agency's management right argument must also fail because the Agency has already bargained with the Union concerning assignment of employees to TDY in Article VIII, Section 8.

V. Analysis and Conclusion

We agree with the Agency that the award is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. The right to assign work to employees includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments in determining whether a particular employee meets these qualifications. Bureau of Engraving and Printing, Washington, D.C. and International Association of Machinists, Franklin Lodge 2135, Washington, D.C., 32 FLRA 531 (1988).

The record indicates that the WMP was established in 1984 to promote self-image and esteem in military appearance. Technicians have been regularly notified of the weight requirements and there have been regular weight checks conducted in connection with specific temporary duty deployments of the Agency. Therefore, the Agency has established that a qualification for TDY assignments is that a technician conform to the weight policy of the Agency. Further, the record indicates that the Grievant was not in conformity with that policy. The Grievant's commanding officer determined that she was not qualified for a TDY assignment. Accordingly, the Grievant's commanding officer denied her the TDY assignment.

In establishing a weight qualification for TDY assignments, the Agency was exercising a right reserved to management by section 7106(a)(2)(B). The right to determine qualifications under section 7106(a)(2)(B) includes the right to determine whether an employee meets such qualifications. Therefore, when the Agency dete