32:1250(169)AR - - Army Transportation Center, Fort Eustis, Virginia 23604-5353 and NAGE Local R4-6 - - 1988 FLRAdec AR - - v32 p1250

[ v32 p1250 ]
The decision of the Authority follows:

32 FLRA No. 169













Case No. 0-AR-1531


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Stuart Rothman 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.

The grievants, six civilian helicopter mechanics, were removed from their positions in a reduction-in-force (RIF) and replaced by military personnel. The Union filed a grievance alleging that the United States Army at Fort Eustis (the Agency or Fort Eustis) violated Department of Defense Directive (DODD) 1100.4 and Army Regulation (AR) 570-4 by replacing the civilian employees with military personnel. The Union also alleged that the Agency violated the parties' collective bargaining agreement, which required compliance with those regulations. The Arbitrator denied the grievance. For the reasons stated below, the Union's exceptions are denied.

II. Background and Arbitrator's Award

In 1985, the U.S. Army at Fort Eustis requested additional maintenance personnel to service an increased number of military aircraft at the Fort Eustis aviation schools. The Major Command Headquarters (MACOM) and the Training and Doctrine Command (TRADOC) authorized an increase of 52 positions for aviation maintenance. The new positions were designated as "enlisted spaces to be filled by military personnel." Arbitrator's Award at 2.

Some of the new aircraft arrived before the military personnel needed to maintain them were assigned to Fort Eustis. The Agency decided to hire up to 20 civilian employees to maintain the aircraft until the military slots could be filled. The grievants were among the civilian employees hired. The Agency characterized the appointments as temporary "term" appointments. Under applicable regulations, term employment is for a period in excess of 1 year but may not exceed 4 years. Reduction-in-force procedures must be used to separate a term employee before the scheduled expiration date of the term. Award at 2.

In September 1987, sufficient military personnel were assigned to Fort Eustis to perform the maintenance work previously performed by the grievants. The grievants were "RIFed" effective December 4, 1987, before their terms expired.

The Union filed a grievance alleging that Fort Eustis violated Army regulations, Department of Defense directives and the parties' collective bargaining agreement by conducting the RIF. The parties' agreement required that administration of the agreement be in compliance with existing laws and regulations and that RIFs be executed in strict compliance with laws and regulations. See Award at 3-4. The grievance sought to reinstate the grievants for the balance of their terms.

According to the Arbitrator, it was undisputed that the six positions held by the grievants were designated by MACOM, a higher authority, as military positions. He found that Fort Eustis had the flexibility to meet an "imminent situation" by using civilian employees and term appointments to fill those positions temporarily. Award at 9. The Arbitrator also found that the temporary, interim appointments did not create permanent civilian positions which thereafter could be converted to military positions only in strict compliance with all the standards, policies, and procedures of the applicable directives and regulations. The Arbitrator stated that the regulations provided that a term employee may be "RIFed," and, therefore, a term appointment is not a commitment of employment for the duration of the term. The Arbitrator found that there was no commitment to employees or the Union that the Agency would not exercise its normal powers to terminate the term employment.

The Arbitrator then addressed the Union's contention that the Agency improperly applied the standards in DODD 1100.4 and AR 570-4. Both the directive and the regulation provide that positions which do not require military incumbents for reasons of law, training, security, discipline, rotation, or combat readiness will be filled by civilian personnel. See Award at 4-6. The Union argued that under the regulation and the directive, the Agency should not have designated the positions to be filled by military personnel.

The Arbitrator found that there was "an absence of sufficient significant evidence that TRADOC and MACOM did not take into consideration those factors which required it to exclude these appointments from the civilian preference standard." Award at 14. The Arbitrator stated that he was unable to conclude that the Agency "acted arbitrarily and capriciously with no rational basis to designate these positions as military within its discretionary authority to make the decision within [DODD 1100.4]." Id.

The Arbitrator concluded that the Agency's decision to use civilian personnel on a term basis was not done for the purpose of evading applicable directives or regulations dealing with the creation of civilian positions. The Arbitrator also concluded that in view of the discretion vested in the determining agencies with respect to designating the six disputed positions as military and filling them on a temporary basis with civilians, he would not substitute his judgment for that of the Agency. The Arbitrator denied the grievance because the Agency had not violated any provision of the collective bargaining agreement when it "RIFed" the grievants before their term expired. See Award at 15-16.

III. Union's Exception

The Union contends that the Arbitra