Director of Administration, Headquarters USAF (Activity) and AFGE-GAIU Council of Headquarters, Locals, AFL-CIO (Union) 

 6 FLRA No. 27
 
 DIRECTOR OF ADMINISTRATION,
 HEADQUARTERS USAF
 Activity
 
 and
 
 AFGE-GAIU COUNCIL OF
 HEADQUARTERS, LOCALS,
 AFL-CIO
 Union
 
                                            Case No. O-AR-79
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR WILLIAM H. COBURN FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANT IN THIS CASE IS A CIVILIAN
 COMPUTER SYSTEMS ANALYST, GS-12, EMPLOYED BY THE ACTIVITY.  THE GRIEVANT
 FILED A GRIEVANCE ALLEGING, AMONG OTHER THINGS, THAT BECAUSE CERTAIN
 HIGHER-GRADE POSITIONS WITHIN THE ORGANIZATIONAL UNIT TO WHICH THE
 GRIEVANT IS ASSIGNED HAD BEEN ESTABLISHED AS MILITARY POSITIONS TO BE
 FILLED BY MILITARY PERSONNEL, HE HAD BEEN DENIED THE OPPORTUNITY TO BE
 CONSIDERED FOR PROMOTION TO THESE POSITIONS.  THE PARTIES WERE UNABLE TO
 RESOLVE THE GRIEVANCE AND THE DISPUTE WAS SUBMITTED TO ARBITRATION.
 
    THE ONLY PORTION OF THE ARBITRATOR'S AWARD IN DISPUTE IS HIS DECISION
 WITH RESPECT TO THE FOLLOWING ISSUE:
 
    WAS THE GRIEVANT IMPROPERLY DENIED OPPORTUNITY TO BE CONSIDERED FOR
 PROMOTION BECAUSE THE
 
    AGENCY REQUIRED CERTAIN POSITIONS IN OLA TO BE FILLED BY MILITARY
 PERSONNEL RATHER THAN BY
 
    CIVILIAN EMPLOYEES?
 
    THE UNION ARGUED BEFORE THE ARBITRATOR THAT UNDER THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT ALL OF THE POSITIONS IN THE GRIEVANT'S
 ORGANIZATIONAL UNIT SHOULD BE CIVILIAN POSITIONS.  ACCORDING TO THE
 UNION, THE DESIGNATION OF SOME OF THESE POSITIONS AS MILITARY VIOLATED
 ARTICLE 17, SECTION 1 OF THE AGREEMENT WHICH PROVIDES:
 
    SECTION 1.  CIVILIAN/MILITARY EMPLOYMENT.  THE EMPLOYER AGREES THAT
 CIVILIAN EMPLOYEES
 
    SHALL BE UTILIZED IN ALL AUTHORIZED POSITIONS WHICH DO NOT REQUIRE
 MILITARY INCUMBENTS FOR
 
    REASONS OF LAW, DIRECTIVES, REGULATIONS, OR WHICH DO NOT REQUIRE A
 MILITARY BACKGROUND FOR
 
    SUCCESSFUL PERFORMANCE OF THE DUTIES INVOLVED.
 
    THE ARBITRATOR FOUND THAT THE POSITIONS IN QUESTION WERE SUPERVISORY
 AND EXCLUDED FROM THE UNIT UNDER THE COLLECTIVE BARGAINING AGREEMENT.
 HOWEVER, HE NOTED THAT THE UNION WAS CHALLENGING THE "SUPERVISORY
 DESIGNATION (AS) IMPROPER UNDER ARTICLE 17, SECTION 1." IN RESPONSE TO
 THIS, THE ARBITRATOR DETERMINED THAT THE AGENCY HAD EXERCISED A
 "MANAGERIAL RIGHT" WHEN IT DESIGNATED THE POSITIONS AS SUPERVISORY AND
 DETERMINED THAT MILITARY RATHER THAN CIVILIAN PERSONNEL WERE NEEDED TO
 FILL THE POSITIONS.  CONCLUDING THAT UNLESS THE UNION COULD SHOW THAT
 THE DECISION TO USE MILITARY PERSONNEL WAS ARBITRARY OR CAPRICIOUS AND
 THUS AN ABUSE OF MANAGERIAL DISCRETION THE DECISION COULD NOT BE
 SUCCESSFULLY CHALLENGED, THE ARBITRATOR DENIED THAT PORTION OF THE
 GRIEVANCE.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  THE AGENCY FILED AN OPPOSITION.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S AWARD
 IS CONTRARY TO SECTION 7106 OF THE STATUTE.  IN SUPPORT OF THIS
 EXCEPTION THE UNION ARGUES THAT THE ARBITRATOR ERRED IN DETERMINING THAT
 THE AGENCY WAS EXERCISING A "MANAGERIAL RIGHT" IN DESIGNATING THE
 POSITIONS AS SUPERVISORY AND IN FILLING THE POSITIONS WITH MILITARY
 PERSONNEL.  THE UNION ASSERTS THAT THE ARBITRATOR, IN MAKING THIS
 DETERMINATION, IGNORED SECTION 7106(B)(1) AND (2) OF THE STATUTE /2/
 WHICH IDENTIFIES PERMISSIVE AREAS OF BARGAINING AND WHICH PERMITS THE
 NEGOTIATION OF PROCEDURES LEADING UP TO THE EXERCISE OF MANAGEMENT
 RIGHTS.
 
    THE UNION'S FIRST EXCEPTION, THAT THE ARBITRATOR'S AWARD IS CONTRARY
 TO LAW, STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN AWARD
 DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2094 AND VETERANS ADMINISTRATION
 HOSPITAL, 2 FLRA NO. 88(1980).  HOWEVER, IN THIS CASE THE UNION HAS NOT
 DEMONSTRATED HOW THE AWARD IS CONTRARY TO SECTION 7106 OF THE STATUTE.
 ALTHOUGH THE UNION ARGUES THAT SECTION 7106(B)(1) AND (2) EXPANDS THE
 SCOPE OF BARGAINING UNDER THE STATUTE FROM WHAT EXISTED UNDER THE
 EXECUTIVE ORDER, IT FAILS TO SHOW HOW THAT SECTION APPLIES IN THIS CASE.
  RATHER, THE UNION MERELY ARGUES THAT SECTION 7106(B)(1) AND (2) MAKES
 ARTICLE 17 OF THE COLLECTIVE BARGAINING AGREEMENT A "PERMISSIBLE" AREA
 OF BARGAINING.  SUCH AN ARGUMENT DOES NOT SUPPORT THE CONTENTION THAT
 THE AWARD VIOLATES SECTION 7106.  INSTEAD, THE UNION IS IN EFFECT
 DISAGREEING WITH THE ARBITRATOR'S INTERPRETATION OF THE AGREEMENT.
 CONSEQUENTLY, THE AUTHORITY FINDS NO BASIS FOR CONCLUDING THAT THE AWARD
 IS CONTRARY TO SECTION 7106 OF THE STATUTE.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE "ARBITRATOR ERRED
 IN ESTABLISHING AN IMPROPER STANDARD OF ALLOCATING THE BURDEN OF PROOF."
 IN SUPPORT OF THIS EXCEPTION THE UNION ASSERTS THAT THE ARBITRATOR
 WRONGLY DETERMINED THAT "(U)NLESS IT IS SHOWN THAT THE (MANAGEMENT)
 DECISION . . . WAS ARBITRARY OR CAPRICIOUS AND THEREFORE AN ABUSE OF
 MANAGERIAL DISCRETION, IT CANNOT SUCCESSFULLY BE CHALLENGED." FURTHER,
 THE UNION ARGUES THAT THE ARBITRATOR SHOULD HAVE APPLIED THE
 "PREPONDERANCE OF THE EVIDENCE" RULE AS THE STANDARD TO BE MET IN THIS
 CASE.
 
    THE AUTHORITY HAS PREVIOUSLY HELD THAT UNLESS A SPECIFIC STANDARD OF
 PROOF IS EXPRESSLY PROVIDED, AN ARBITRATOR MAY ESTABLISH WHATEVER
 STANDARD OF PROOF THE ARBITRATOR CONSIDERS APPROPRIATE AND THE
 ARBITRATOR'S AWARD IS NOT SUBJECT TO REVIEW ON THAT BASIS.  DEPARTMENT
 OF DEFENSE DEPENDENTS SCHOOLS, EUROPE AND OVERSEAS EDUCATION
 ASSOCIATION, 4 FLRA NO.  56(1980).  IN THIS CASE THE UNION HAS NOT
 ASSERTED NOR DOES IT APPEAR THAT A SPECIFIC STANDARD OF PROOF WAS
 EXPRESSLY PROVIDED.  THUS, THE ARBITRATOR WAS FREE TO ESTABLISH WHATEVER
 STANDARD OF PROOF HE CONSIDERED APPROPRIATE.  THEREFORE, THE UNION'S
 SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER
 SECTION 7122(A) OF THE STATUTE AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., JUNE 18, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ SECTION 7106(B)(1) AND (2) PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK;
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)