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32 FLRA No. 42

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

AIR FORCE LOGISTICS COMMAND
AFLC HEADQUARTERS, AFLC/DPCE
Agency

and 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO
Union

Case No. 0-AR-1457

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Frank A. Keenan 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 Arbitrator denied the grievance, finding that the portion of the parties' memorandum of agreement (MOA) concerning the conversion of civilian positions to military positions through attrition was unenforceable. For the reasons stated below, the Union's exceptions are denied.

II. Background

The Union is the exclusive representative of a nationwide unit of Air Force Logistics Command (AFLC) employees. AFLC Headquarters is at Wright-Patterson Air Force Base (AFB), Ohio. In 1981, the parties executed a MOA regarding two programs: Critical Military Skills and Unsatisfactory Rotation Index. Under these programs, as set forth in Air Force regulations, when specific career fields are identified and listed as critical military skills, vacancies occurring in the listed fields are filled with military personnel. The parties' MOA provided that, when conversion is determined to be necessary, "civilian positions will be converted to military positions only upon attrition of the civilian employee." Award at 4. As a result of bargaining for a new master labor agreement, the parties, in 1985, agreed that they would continue to be bound by the 1981 MOA.

In March 1986, military officials at Kelly AFB determined that insufficient military personnel were assigned to provide security for aircraft and other related equipment. To remedy that insufficiency and to comply with Air Force regulations which required that aircraft security be provided by military personnel, military officials decided that it was necessary to convert the civilian security police function to military personnel. Award at 8-9. To accomplish this conversion, civilian and military officials agreed to reassign civilian security personnel to other positions so that their vacant positions could be converted to military positions.

Pursuant to the planned conversion, on May 26, 1986, a civilian security police officer was reassigned as a file clerk. Because he felt ill suited for the position, he voluntarily retired. The Union attempted to discuss the reassignment with Kelly AFB management, but when settlement was not reached, a grievance was filed at the national level. The grievance was ultimately submitted to arbitration.

III. The Arbitrator's Award

The Arbitrator found that the parties could not agree on the issue to be submitted to him, although he noted that the parties had stipulated that the matter was properly before him. Award at 11. The Arbitrator therefore framed the issue as: "(1) Did Management violate the 1981 MOA? (2) In the event it is determined that Management violated the 1981 MOA, is the 1981 MOA enforceable? If so, what is the appropriate remedy?" Award at 31.

The Agency argued before the Arbitrator that it had not violated the MOA. The Agency claimed that the term "attrition" as used in the MOA included both vacancies occurring as a result of voluntary action on the part of the incumbent employee as well as involuntary action, including management initiated reassignment. Award at 12. The Agency also argued that management's reserved rights to determine the mission requirements of the Agency and to assign employees allowed it to convert the security police positions from civilian to military positions. The Agency claimed that interpreting the term "attrition" in the MOA to preclude that conversion would render the MOA "void as a matter of law" because it would interfere with those management rights. Award at 13-15.

The Union claimed that the term "attrition" as used in the MOA referred to "a passive process" whereby management "awaits the creation of vacancies through the initiative of employees." Award at 20-21. Therefore, the Union argued, by compelling the reassignment of civilian employees, the Agency had violated the MOA. The Union contended that because the disputed provision of the MOA concerns only the timing of the conversion from civilian to military positions, it is an enforceable procedure under section 7106(b)(2). The Union also contended that the provision was an enforceable appropriate arrangement under section 7106(b)(3) for employees adversely affected by the conversion program. Finally, the Union argued that if the MOA did not preclude the reassignments, the Agency was obligated to provide it with notice and an opportunity to bargain prior to implementation. Award at 30.

The Arbitrator found that the term "attrition" in the parties' MOA meant the voluntary release of positions by their civilian incumbents. He concluded, therefore, that the MOA precluded management from reassigning civilian employees from their security police positions and that the management initiated reassignments had violated the agreement. Award at 33.

However, the Arbitrator also determined that the MOA could not be enforced because it was "void as a matter of law." He first determined that he was obligated under the Statute to resolve the grievance in accordance with applicable law, including the management rights provisions of section 7106. He then determined that if management were required to staff a position with a civilian incumbent "until such time as the position is vacated by attrition of the civilian employee," as the MOA provides, "management's statutorily protected right to determine its mission and make assignments" would be violated. Award at 36. The Arbitrator also found that because the MOA directly interfered with management's rights, it did not constitute an enforceable procedure under section 7106(b)(2). Award at 40-41.

Moreover, the Arbitrator determined that the disputed provision of the MOA was not enforceable as an appropriate arrangement under section 7106(b)(3). Applying the criteria developed by the Authority in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), he found that the MOA was intended to be an "arrangement" for adversely affected employees. However, the Arbitrator found that the provision was not an "appropriate" arrangement.

The Arbitrator found that the Agency had established as a matter of fact that the accomplishment of its mission required the conversion of the civilian security police positions to military positions. Award at 41. He also found that the effect of the MOA on management's rights to determine its mission and assign employees was "significant and negative" and that the limitations on management's discretion imposed by the MOA were "substantial and negative." Award at 45-46. After weighing the benefits afforded employees by the "attrition" provision of the MOA against the effect of that provision on management's rights, the Arbitrator found that the provision excessively interfered with the exercise of managment's rights. Award at 49. In making this finding, the Arbitrator emphasized the military mission of the Agency and the necessity for maintaining a constant state of readiness for deployment. He found that staffing delays, such as those imposed by the MOA, excessively interfered with management's right to accomplish its mission and concluded that the MOA was not an enforceable appropriate arrangement. Since the MOA could not be enforced to preclude the reassignments in question, the Arbitrator denied the grievance. Award at 48-49.

Finally, the Arbitrator noted the Union's contentions as to notice and impact and implementation bargaining. He found that this issue was outside the scope of the grievance. Award at 50. However, he commented that the invalidity of the MOA meant that the reassignments did not constitute a change in working conditions which gave rise to a bargaining obligation. He also indicated that even if there were a bargaining obligation in this case, the Agency satisfied its obligation to provide the Union with notice of the change because Union officers and stewards were present at meetings called to discuss the reassignments.

IV. Union Exceptions

The Union excepts to the Arbitrator's finding that the MOA was not enforceable. The Union contends that the Arbitrator incorrectly determined that the disputed provision of the MOA was not an enforceable procedure under section 7106(b)(2) of the Statute. The Union argues that the Arbitrator wrongly rejected its claim that the MOA affected only the timing of the conversion of civilian to military positions and improperly gave excessive weight to the Agency's military mission. Union Exceptions at 6-7.

The Union also contends that the Arbitrator incorrectly determined that the MOA did not constitute an enforceable appropriate arrangement under section 7106(b)(3). The Union notes that the disputed provision has been in effect since 1981 and argues that the Arbitrator gave undue weight to the military mission of the Agency. Union Exceptions at 7-8. The Union also requests that the Authority find that the MOA constitutes a "permissive" subject of bargaining under section 7106(b)(1) of the Statute. Union Exceptions at 8.

Finally, the Union excepts to the Arbitrator's conclusion that the issue of notice and impact and implementation bargaining was outside the scope of the grievance. The Union contends that even if a practice is found to be illegal, it is entitled to bargain over any change in the practice and that the Arbitrator's statements as to sufficient notice under the Statute were incorrect. Union Exceptions at 9-10.

V. Discussion

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute: that is, that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

The Arbitrator properly determined that consideration of applicable Federal law was necessary to resolve the grievance in this case. The Statute does not preclude an arbitrator from considering the applicability of relevant Federal law, including the management rights provisions of section 7106, when resolving a grievance under the negotiated grievance procedure. Panama Canal Commission and International Organization of Masters, Mates and Pilots, 27 FLRA 907, 910-11 (1987). The Union's exceptions provide no basis for concluding that the Arbitrator's consideration of the enforceability of the MOA was contrary to law or is otherwise deficient.

The Arbitrator interpreted the "attrition" provision of the MOA as precluding management from reassigning civilian security personnel in order to fill their positions with military personnel. We find that the Arbitrator correctly determined that the MOA, so interpreted, was not enforceable. Agreement provisions which prohibit the reassignment of employees interfere with management's right to assign employees to positions under section 7106(a)(2)(A). See Veterans Administration Medical Center, Pittsburgh, Pennsylvania and American Federation of Government Employees, Local 2028, AFL-CIO, 25 FLRA 520 (1987) (arbitration award enforcing contract provision to preclude reassignment of employee to different position set aside because award violates management's right to assign employees). See also Naval Undersea Warfare Engineering Station, Keyport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA 957 (1986) (portion of an arbitration award rescinding the reassignment of an employee is set aside). The Arbitrator found that the "attrition" requirement of the MOA would "proscribe" the "management initiated reassignments" ordered by the Agency. Award at 41. Thus, without determining the appropriateness of the Arbitrator's conclusion that the MOA also violated management's right under section 7106(a)(1) to determine its mission, we find that he properly determined that the "attrition" requirement interfered with the exercise of management's right to assign employees and was unenforceable.

In addition, the Arbitrator correctly determined that the MOA was not an enforceable procedure or appropriate arrangement. The Arbitrator considered the Union's contention that the "attrition" provision concerned only the timing of the Agency's conversion of civilian positions to military positions and concluded that the effect of the provision was substantive and not procedural. As we found above, that conclusion was correct. With respect to the weight given by the Arbitrator to the military mission of the Agency, we find that he correctly identified and balanced the interests of management and of employees in determining that the disputed provision of the MOA was not enforceable under section 7106(b)(3) of the Statute. The Union's exception provides no basis for concluding that the Arbitrator's determination that the MOA excessively interfered with management's rights is contrary to law. See Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717, 728-32 (1985), affirmed mem. sub nom. Association of Civilian Technicians, Montana Chapter v. FLRA, No. 86-1057 (D.C. Cir. Jan. 29, 1987). An arbitration award may not enforce a collective bargaining agreement so as to improperly deny an agency the authority to exercise its rights under section 7106(a) of the Statute. See Naval Undersea Warfare Engineering Station, 22 FLRA 957, 959 (1986).

The Union requests that we consider whether the "attrition" provision of the MOA is enforceable under section 7106(b)(1) as a matter concerning which the Agency has elected to bargain. However, we have already found that the MOA was unenforceable under section 7106(a)(2). It is, therefore, unnecessary to decide whether the provision conflicts with management's right under section 7106(b)(1).

Finally, the Union contends that the Arbitrator incorrectly determined that the issues of notice and impact and implementation bargaining were not properly before him. This Union contention constitutes nothing more than disagreement with the Arbitrator's formulation of the issue and does not constitute a basis for finding the award deficient under section 7122(a). See Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516 (1986) (the Authority will accord an arbitrator's formulation of the issue submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation of the collective bargaining agreement). Therefore, we do not reach and we do not adopt the Arbitrator's findings as to what constitutes sufficient notice to a union.

Accordingly, the Union's exceptions are denied.

Issued, Washington, D.C.,

____________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The Agency's opposition to the Union's exceptions was untimely filed and was not considered.

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