36:0344(42)AR - - DOD, Tennessee NG and NAGE Local R5-165 - - 1990 FLRAdec AR - - v36 p344
[ v36 p344 ]
The decision of the Authority follows:
36 FLRA No. 42
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
TENNESSEE NATIONAL GUARD
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
July 19, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Paul Barron. The Arbitrator denied the grievance over the Agency's selection for an aircraft mechanic foreman position.
The Union filed exceptions to the award 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 did not file an opposition to the Union's exceptions.
We conclude that the Union fails to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
This case involves civilian technician employees of the Agency who perform the civilian jobs of aircraft maintenance and who, as a condition of their employment, must also be members of the National Guard unit where they work. The grievance arose when an employee with the military rank of Technical Sergeant was selected for the position of aircraft mechanic foreman for Flight A of the organizational maintenance department at the Agency's Memphis Base. The selection resulted in an "inversion" of military rank, which means that the selected employee in his civilian capacity would be supervising employees of senior military rank. Inversion of military rank is not permitted under Technician Pamphlet Regulation (TPR) 300, 302.7 2-c, which states as follows:
Situations of inversion of military rank are not permitted; i.e., a military technician may not be militarily senior to his or her full-time supervisor.
Arbitrator's Award at 5.
To correct the inversion of military rank, the Agency shifted employees between Flight A and Flight B, the other aircraft group within the department, so that none of the employees of Flight A were senior in military rank to the new foreman.
The Union's grievance concerning the selection was not resolved and was submitted to arbitration. Before the Arbitrator, the Union argued that the shifting of personnel from one flight to another did not correct the inversion because the Flight A foreman indirectly supervises Flight B mechanics when the Flight B foreman is absent or when personnel from both flights work together on a particular plane. The Agency contended that the inversion had been corrected.
As relevant herein, the Arbitrator determined that TPR 300, 302.7 2-c did not support the Union's position. He noted that the regulation specifically prohibits a technician from being militarily senior to his or her full-time supervisor. Although the Arbitrator determined that the new foreman may occasionally supervise militarily senior technicians, the Arbitrator concluded that there was no basis for finding that the new foreman was their full-time supervisor. In addition, the Arbitrator separately concluded that because the regulation is important only in terms of the Agency's military mission, the Union could not assert the inversion to support a grievance over a supervisory selection.
For these and other reasons, the Arbitrator denied the grievance.
III. The Union's Exceptions
The Union contends that the Arbitrator misinterpreted TPR 300, 302.7 2-c. The Union argues that "the Arbitrator found that on at least some occasions an inversion would occur, but through an erroneous interpretation of the applicable regulation held that this situation was permissible." Union's Exceptions at 1. The Union argues that TPR 300, 302.7 2-c prohibits all inversions of military rank and maintains that the regulation's prohibition against a technician being militarily senior to his or her full-time supervisor is an amplification of the rule, which states the most grievous instance of an inversion. The Union asserts that the Arbitrator misinterpreted the regulation by relying on the amplification rather than the general prohibition. The Union further argues that even if "full-time" is a critical element, the Arbitrator incorrectly considered full-time to refer only to the technician's normal supervisor rather than applying it to a permanent, on-going supervision situation, where the technician indirectly supervises higher-ranking employees at all times and is in a position to directly supervise such employees.
The Union also contends that the Arbitrator erred by determining "that even if the regulation were violated that based on the inversion created, the Union would