48:0110(11)AR - - NAGE, Local R5-188 and Seymour Johnson AFB /// Dept. of the Air Force - - 1993 FLRAdec AR - - v48 p110
[ v48 p110 ]
The decision of the Authority follows:
48 FLRA No. 11
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
SEYMOUR JOHNSON AIR FORCE BASE
August 10, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an exception to an award of Arbitrator Fred Blackwell 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 did not file an opposition to the Union's exception.
The Arbitrator denied a grievance claiming that the Agency violated Agency regulations and the parties' negotiated agreement when it abolished three civilian employee positions in a reduction-in-force action and thereafter assigned military personnel to perform the work.
For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
On October 21, 1991, the Agency carried out a reduction-in-force (RIF) and abolished three of ten civilian employee telephone switchboard operator positions. Subsequently, the Agency assigned existing military personnel to perform telephone switchboard duties on the weekends and during the week when it was necessary to cover a civilian who was on a break period. In January 1992, the Agency moved the remaining civilian telephone switchboard operators into the base communications and computer center, the location of the military personnel who were assigned the work of the civilian telephone switchboard operators.
On February 6, 1992, Robert Howett, who occupied one of the abolished telephone operator positions, filed a grievance alleging that the Agency had violated Air Force Regulation (AFR) 26-1, Volume II, Chapter 6, Section A, paragraph 6-3 and the negotiated agreement by abolishing his position and thereafter assigning military personnel to perform the work previously done by civilian telephone operators. As a remedy, Howett requested that the Agency reinstate two civilian telephone operator positions, remove the switchboard from the base communications and computer center, and pay him all lost wages.
When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated that the grievance raised two issues:
1. Whether the grievance should be barred from consideration on its merits due to the untimeliness and non-arbitrability of the grievance; and
2. Whether the Management violated the applicable Regulations and the parties' negotiated Agreement by assigning Military Personnel to perform the duties of Civilian Telephone Operator positions following the elimination of three (3) such positions in an October 1991, reduction-in-force at the Seymour Johnson Air Force Base, North Carolina.
Award at 8.
Initially, the Arbitrator found that the grievance was timely filed and that it was arbitrable.
On the merits of the case, the Arbitrator concluded that the evidence did not establish that the Agency violated AFR 26-1, paragraph 6-3 or the parties' negotiated agreement by using military personnel to perform switchboard duties previously performed by civilian employees subsequent to the reduction-in-force.(1) The Arbitrator examined the requirements of paragraph 6-3a of the regulation, which provides that the Agency may not add "military authorizations" when civilian authorizations have been deleted in a RIF, and found that no military authorizations had been added to either the switchboard operation or the base communications and computer center. The Arbitrator then examined paragraph 6-3b of the regulation, which provides that the Agency may not add "overage military personnel"(2) after a RIF, and found that overage military personnel had not been added to, or used to carry out the functions of, the switchboard operation or the base communications and computer center after the RIF. Accordingly, the Arbitrator found that the Agency had not violated the requirements of AFR 26-1, Volume II, paragraph 6-3a or b. Finally, the Arbitrator found that the functions of the switchboard operations and the base communications and computer center were supervised by the same individual. Based on that finding, the Arbitrator concluded that both functions were within the same organizational activity for purposes of paragraph 6-3c of the regulation.
The Arbitrator found that management's assignment of the tasks of the abolished civilian switchboard operator positions to military personnel "complied with all of the applicable requirements and standards in AFR 26-1, Volume II, paragraph 6-3, and . . . the negotiated Agreement." Award at 13. Accordingly, he denied the grievance.
The Union contends that the award is contrary to law, rule, regulation, and the parties' negotiated agreement. The Union argues that the Arbitrator did not address whether the Agency violated AFR 26-1, paragraph 6-1 or the second sentence of paragraph 6-3. The Union maintains that the Agency violated those provisions because "[t]here is no indication that the position of telephone operator requires military personnel for any of the reasons set forth in the regulations." Exception at 3. Next, the Union asserts that the Arbitrator erred in his interpretation of subparagraph 6-3b by finding that overage military personnel were not added to or used to carry out the functions of the abolished civilian employee positions. The Union argues that underutilized military personnel are performing the functions of the abolished civilian employee positions. Finally, the Union disagrees with the Arbitrator's finding that the military personnel and civilian employees were in the same organizational activity and that, therefore, military personnel could be assigned the tasks of the abolished civilian employee positions, in accordance with subparagraph 6-3c. In this regard, the Union maintains that because the switchboard operations and the base communications and computer center had different first-line supervisors they were not part of the same operational activity.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient on any ground set forth in section 7122(a) of the Statute.
The Union fails to establish that the Arbitrator's interpretation of AFR 26-1, paragraph 6-3 is erroneous. It is clear that the Union's interpretation of paragraph 6-3 differs from the Arbitrator's. The Union has not shown, however, that the Arbitrator's interpretation conflicts with paragraph 6-3 or is otherwise impermissible.
First, we reject the Union's argument that the award is deficient because the Arbitrator did not address whether the Agency's actions violated paragraph 6-1 and the second sentence of paragraph 6-3. By its terms, paragraph 6-1 provides only general information about the use of military personnel and civilian employees. Although paragraph 6-1 states that military personnel should be assigned to positions that directly contribute to combat or direct combat support and that civilian employees should perform indirect combat support, it does not address the use of military personnel to perform the functions of civilian employee positions abolished in a RIF. Issues involving that matter are expressly addressed by paragraph 6-3, which, as interpreted by the Arbitrator, permits the assignments at issue in this case. With regard to the second sentence of paragraph 6-3, we note that although it states that civilian employees should perform workloads not requiring military personnel, that proscription is not unrestricted, but is qualified by the phrase "to the maximum extent possible." Significantly, the subparagraphs of 6-3 address specific restrictions on the use of military personnel after a RIF to perform work previously done by civilian employees. Accordingly, we do not find that the Arbitrator improperly relied on those subparagraphs in determining the issue before him.
We further reject the Union's assertion that the Arbitrator erred in his interpretation of paragraph 6-3b and c. The Arbitrator examined the Agency's actions in light of the restrictions contained in those subparagraphs and concluded that the Agency had complied with all of the requirements of paragraph 6-3. We conclude that the Union's contentions to the contrary constitute nothing more than an attempt to relitigate the merits of the grievance and disagreement with the Arbitrator's interpretation and application of the applicable regulation and the parties' negotiated agreement. Accordingly, the Union's contentions provide no basis for finding the award deficient. See U.S. Army Transportation Center, Fort Eustis, Virginia 23604-5353 and Local R4-6, National Association of Government Employees, 32 FLRA 1250, 1253 (1988) (Union's contention that the arbitrator erred in finding that the agency complied with applicable regulations when it designated positions as military and replaced civilian employees with military personnel in a RIF was an attempt to relitigate the merits of a grievance and constituted nothing more than disagreement with arbitrator's interpretation and application of the collective bargaining agreement and applicable regulations, and provided no basis for finding the award deficient).
The Union's exception is denied.
As relevant to this case, AFR 26-1, Vol. II, Chapter 6 provides:
UTILIZATION OF MILITARY MANPOWER
Section A--Manpower Mix Decision
6-1. General Information. Air Force workloads may be performed by one of three types of manpower: military personnel, in-service civilian employees, or by contract services. The Department of Defense (DOD) requires that military personnel only be assigned to positions that directly contribute to prosecution of war (combat or direct combat support), are required by law, are military due to custom or tradition, or are needed for oversea rotation. Other workloads, considered indirect combat support, should be performed by in-service civilian employees or contract services . . . .
. . . .
6-3. Manpower Mix. Military essentiality is the driving force in determining the Air Force manpower mix. In-service civilian employees or contract services should perform workloads not requiring military personnel to the maximum extent possible.
a. MAJCOM and servicing manpower activities will not add military authorizations to work centers when civilian authorizations have been deleted, as the result of a civilian reduction in force (RIF).
b. MAJCOMs must not add overage military personnel to a work center under this RIF condition, if the functions formerly performed by in-service civilian employees must still be performed.
c. Functional managers may give tasks comprising the abolished positions to residual assigned military or civilian personnel within the activity affected.
As relevant to this case, the parties' agreement provides:
. . . .
Section 2. . . . . All reduction-in-force actions will be carried out in strict compliance with applicable rules and regulations.
(If blank, the decision does not have footnotes.)
1. The relevant regulatory and contractual provisions are contained in the