34:0296(55)AR - MICHIGAN AIR NATIONAL GUARD SELFRIDGE ANG BASE MICHIGAN and THE ASSOCIATION OF CIVILIAN TECHNICIANS, MICHIGAN STATE COUNCIL -- 1990 FLRAdec AR



[ v34 p296 ]
34:0296(55)AR
The decision of the Authority follows:


  34 FLRA NO. 55
 
                  MICHIGAN AIR NATIONAL GUARD
                  SELFRIDGE ANG BASE MICHIGAN

                              and

            THE ASSOCIATION OF CIVILIAN TECHNICIANS
                    MICHIGAN STATE COUNCIL

                          0-AR-1534
                        (33 FLRA 385)

	   ORDER DENYING REQUEST FOR RECONSIDERATION

     		      January 12, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on a request for
reconsideration of the Authority's decision of October 26, 1988,
filed by The Association of Civilian Technicians, Michigan State
Council (the Union). The Michigan Air National Guard, Selfridge
ANG Base Michigan (the Agency) did not file an opposition to the
request. For the reasons discussed below, the request is
denied.

II. Background

     In Michigan Air National Guard, Selfridge ANG Base Michigan
and The Association of Civilian Technicians, Michigan State
Council, 33 FLRA  385 (1988) (Michigan Air National Guard), the
Authority set aside an Arbitrator's award because the award was
contrary to the Agency's right to assign work under section
7106(a)(2)(B) of the Statute. The Arbitrator found that the
Agency had violated Article VIII, Section 8 of the parties' labor
agreement by denying the grievant a temporary duty assignment
(TDY) because the grievant did not meet the Agency's Weight
Management Program (WMP) requirements. The Authority concluded,
however, that when the Agency determined that the grievant was
not in  compliance with the weight requirement and, thus,
not eligible to go on TDY assignments, the Agency was exercising
its right under section 7106(a)(2)(B) to: (1) establish the
particular qualifications and skills needed to perform a TDY
assignment; and (2) make judgments as to whether the grievant met
those qualifications.

III. Request for Reconsideration

     The Union seeks reconsideration of the Authority's October
26, 1988, decision and contends that extraordinary circumstances
are present because the Authority's conclusion in Michigan Air
National Guard is based on an error of law. The Union argues that
management may negotiate the types of employees assigned to TDY's
under section 7106(b)(1) of the Statute. The Union contends,
further, that under section 7106(b)(2), management may negotiate
procedures in exercising its right to assign work. Thus, the
Union argues that by negotiating Article VIII, Section 8 of the
parties' labor agreement, under section 7106(b), the Agency
waived whatever rights it had to impose other qualification
requirements for TDY assignments. The Union claims that it raised
this argument in its opposition filed in Michigan Air National
Guard but that the Authority did not address the argument in its
decision.

     Consequently, the Union argues that because the Agency
agreed to Article VIII, Section 8, the Agency may not now raise a
claim that this clause conflicts with management's rights.
Therefore, the Union concludes that the Arbitrator's award should
not have been set aside.

     The Union also argues that reconsideration is appropriate
because the Authority's description of the record in Michigan Air
National Guard conflicts with the Arbitrator's factual findings.
For example, the Union contends that, contrary to the Authority's
conclusion, the record showed and the Arbitrator found that
technicians had not been regularly notified of weight
requirements nor had the Agency conducted any regular weight
checks in connection with specific temporary duty deployments.
The Union argues further that there is no  authority under any
regulations requiring or permitting the Agency to impose weight
restrictions when civilian technicians are eligible for or seek
to participate in civilian TDY's. Finally, the Union claims that
the Arbitrator concluded that at the time of the TDY assignment,
the grievant was in compliance with the Agency's weight control
requirement. Thus, the Union contends that it was improper for
the Authority to recast factual findings made by the Arbitrator.


IV. Analysis and Conclusion

     Section 2429.17 of the Authority's Rules and Regulations
permits a party that can establish "extraordinary circumstances"
to request reconsideration of a decision of the Authority. We
conclude, however, that the Union has not established
"extraordinary circumstances" within the meaning of section
2429.17. Rather, the arguments presented by the Union in support
of its request constitute nothing more than disagreement with the
Authority's decision and an attempt to relitigate the merits of
the case.

     In Michigan Air National Guard, the Authority concluded that
when the Agency determined that the grievant was not in
compliance with the weight requirement and not eligible to go on
TDY assignments, the Agency was exercising its right under
section 7106(a)(2)(B) to: (1) establish the particular
qualifications and skills needed to perform a TDY assignment; and
(2) to make judgments as to whether the grievant met those
qualifications. Management rights under section 7106(a) cannot be
waived or relinquished through collective bargaining. See
Southwestern Power Administration and International Brotherhood
of Electrical Workers, Local 1002, 22 FLRA  475 (1986); see also
Overseas Education Association v. FLRA,  827 F.2d 814, 819 (D.C.
Cir. 1987). Further, the Authority has held that an arbitrator
may not interpret or enforce a collective bargaining agreement so
as to improperly deny an agency the authority to exercise its
rights under section 7106(a). See, for example, Naval Air Rework
Facility, Jacksonville, Florida, and National Association of
Government Inspectors and Quality Assurance Personnel, 27 FLRA 
318 (1987).

     Thus, contrary to the Union's claim, the Agency did not and
could not waive its right to establish a requirement that
technicians conform to the weight policy of the Agency in order
to qualify for TDY assignments by agreeing to Article VIII,
Section 8 of the parties' collective bargaining agreement.
Consequently, we conclude that the Union has not established that
the Authority's decision in Michigan Air National Guard is based
on an error of law.

     We also reject the Union's additional arguments concerning
inconsistencies between the Authority's description of the record
and the Arbitrator's factual findings. For example, the Union
claims in its motion for reconsideration, as it did before the
Authority in Michigan Air National Guard, that the record
supports the Arbitrator's finding that technicians had not been
regularly notified of weight requirements and that the
Agency had not conducted any regular weight checks in connection
with specific TDY deployments.

     We note that the record before the Authority in Michigan Air
National Guard indicated, however, that all employees were
informed in March 1987, that any employee who was not in
compliance with the Agency's weight requirements would not be
permitted to go on TDY deployments and that technicians would be
weighed at least 30 days before a scheduled TDY deployment. See
Agency Exceptions in Michigan Air National Guard at enclosure 5.
The record also indicated that the grievant was weighed at least
30 days before her scheduled TDY to see if she was in compliance
with the Agency's weight requirements. See Arbitrator's award in
Michigan Air National Guard at 5. Furthermore, the Arbitrator
found only that the evidence relating to notifying technicians of
the weight requirements was not sufficient to convince him that
the parties intended to overrule the parties' labor agreement.
The Arbitrator did not find, however, that notification of the
weight requirements did not, in fact, occur. Thus, we reject the
Union's claim that technicians had not been regularly notified of
weight requirements and that the Agency had not conducted any
regular weight checks in connection with specific TDY
deployments.

     In its request for reconsideration, the Union also claims
that there is no  authority or regulation requiring or permitting
the Agency to impose weight restrictions when civilian
technicians are eligible for or seek to participate in civilian
TDY's. This claim was also raised before the Authority in
Michigan Air National Guard. The Authority found, however, that
the Agency was exercising its right under section 7106(a)(2)(B)
to establish the particular qualifications and skills needed to
perform a TDY assignment and to make judgments as to whether the
grievant met those qualifications when the Agency determined that
the grievant was not in compliance with the weight requirement
and, thus, not eligible to go on TDY assignments. Consequently,
there is no  merit to the Union's claim that there is no 
authority permitting the Agency to impose weight restrictions for
TDY assignments.

     Finally, the Union contends that the Arbitrator concluded
that at the time of the TDY assignment, the grievant actually was
in compliance with the Agency's weight control requirement.
Contrary to this claim, the Arbitrator did not find or conclude
that the grievant was in compliance with the Agency's weight
requirements at the time of the TDY. The record
discloses only that this claim was raised by the grievant in her
testimony in the arbitration proceeding and by the Union in its
argument before the Arbitrato