09:0392(47)AR - Army Missile Command, Redstone Arsenal, AL and AFGE Local 1858 -- 1982 FLRAdec AR (Authority decision, July 13, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving exceptions to an arbitration award under 5 U.S.C. § 7122. Section 7123(a)(1) generally excludes orders under § 7122 from direct judicial review unless the order involves an unfair labor practice under 5 U.S.C. § 7118.

Plain-English summary

An Army reorganization added military instructor positions and removed civilian instructor positions. An arbitrator rejected a union grievance that challenged the use of military personnel and temporary employees under agency and personnel rules. The Authority denied the union’s exception because its assertions did not show that the arbitrator misapplied those rules.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; grievance denial upheld.
• Key point: Unsupported disagreement with the arbitrator’s factual findings did not establish an award defect.

Full text (FLRA public release)

[ v09 p392 ]

09:0392(47)AR

The decision of the Authority follows:

9 FLRA No. 47

UNITED STATES ARMY MISSILE
COMMAND, REDSTONE ARSENAL,
ALABAMA
Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1858
Union

Case No. O-AR-204

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR HENRY B. WELCH 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 FILED AN
OPPOSITION.

THE DISPUTE IN THIS MATTER AROSE FOLLOWING A REORGANIZATION BY THE
ACTIVITY IN THE U.S. MISSILE AND MUNITIONS CENTER AND SCHOOL. THE
REORGANIZATION RESULTED IN THE ADDITION OF 38 MILITARY INSTRUCTOR
POSITIONS AND THE LOSS OF 45 CIVILIAN INSTRUCTOR POSITIONS. A GRIEVANCE
WAS FILED AND THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.

IN RESOLVING THE GRIEVANCE THE ARBITRATOR EXPRESSLY ADDRESSED THE
ARGUMENTS RAISED BY THE UNION. ON THE BASIS OF THE EVIDENCE PRESENTED,
THE ARBITRATOR DETERMINED THAT THERE HAD BEEN NO CONVERSIONS OF CIVILIAN
POSITIONS TO MILITARY POSITIONS IN VIOLATION OF ARMY REGULATION (AR)
570-4. THE ARBITRATOR FURTHER DETERMINED THAT THE ACTIVITY'S USE OF
EXCESS MILITARY PERSONNEL DID NOT VIOLATE ANY APPLICABLE AGENCY
REGULATION. FINALLY, IN RELIANCE ON THERE BEING NO LIMITATION IN 5 CFR
PART 316 AND FPM CHAPTER 316 ON THE NUMBER OF TIMES AN EMPLOYEE MAY
SERVE UNDER A TEMPORARY APPOINTMENT, THE ARBITRATOR DETERMINED THAT
THERE WAS NO VIOLATION OF THESE REGULATIONS BY THE ACTIVITY IN ITS USE
OF TEMPORARY EMPLOYEES. ACCORDINGLY, AS HIS AWARD THE ARBITRATOR DENIED
THE GRIEVANCE.

IN ITS EXCEPTION THE UNION PRINCIPALLY CONTENDS THAT IN DETERMINING
THAT THE ACTIVITY HAD NOT VIOLATED APPLICABLE REGULATIONS, THE
ARBITRATOR MISINTERPRETED AND MISAPPLIED THESE REGULATIONS. IN SUPPORT
OF THIS EXCEPTION, THE UNION STATES THAT "(T)HE RECORD CLEARLY
ESTABLISHES" THAT CIVILIAN POSITIONS WERE CONVERTED TO MILITARY
POSITIONS IN VIOLATION OF DEPARTMENT OF DEFENSE REGULATION 1400.5. AS
FURTHER SUPPORT AND IN REPETITION OF THE ARGUMENTS REJECTED BY THE
ARBITRATOR, THE UNION STATES THAT "(T)HERE CAN BE NO QUESTION" THAT THE
ACTIVITY'S USE OF MILITARY PERSONNEL WAS PROHIBITED BY AR 570-4 AND THAT
IT IS "CLEARLY ESTABLISHE(D)" THAT THE ACTIVITY'S USE OF TEMPORARY
EMPLOYEES WAS PROHIBITED BY 5 CFR PART 316 AND FPM CHAPTER 316.

THE UNION'S EXCEPTION FAILS TO ESTABLISH THAT THE ARBITRATOR'S AWARD
IS DEFICIENT. AS NOTED, THE ARBITRATOR, ON THE BASIS OF THE EVIDENCE,
EXPRESSLY DETERMINED THAT IN THE CIRCUMSTANCES PRESENTED THE ACTIVITY
HAD NOT CONVERTED CIVILIAN POSITIONS TO MILITARY POSITIONS IN VIOLATION
OF AGENCY REGULATION AND THE ACTIVITY'S USE OF MILITARY PERSONNEL AND
TEMPORARY EMPLOYEES WAS NOT CONTRARY TO APPLICABLE REGULATIONS. THE
UNION BY ITS CONCLUSIONAL ASSERTIONS HAS NOT DEMONSTRATED THAT THE
ACTIVITY CONVERTED CIVILIAN POSITIONS TO MILITARY POSITIONS AND USED
MILITARY PERSONNEL AND TEMPORARY EMPLOYEES IN VIOLATION OF APPLICABLE
REGULATIONS AND CONSEQUENTLY HAS NOT SHOWN THAT THE ARBITRATOR
MISINTERPRETED OR MISAPPLIED THOSE REGULATIONS. /1/ ACCORDINGLY, THE
UNION'S EXCEPTION IS DENIED. ISSUED, WASHINGTON, D.C., JULY 13, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ THE UNION LIKEWISE HAS NOT DEMONSTRATED, AS ADDITIONALLY
CONTENDED IN ITS EXCEPTION, THAT THE AWARD IS CONTRARY TO SECTION
7101(B) OF THE STATUTE BY NOT PROMOTING THE EFFICIENT OPERATION OF THE
FEDERAL GOVERNMENT.