The Adjutant General of Pennsylvania (Agency) and The Pennsylvania State Council Association of Civilian Technicians, Inc. (Union)

 



[ v08 p208 ]
08:0208(44)AR
The decision of the Authority follows:


 8 FLRA No. 44
 
 THE ADJUTANT GENERAL
 OF PENNSYLVANIA
 Agency
 
 and
 
 THE PENNSYLVANIA STATE
 COUNCIL ASSOCIATION OF
 CIVILIAN TECHNICIANS,
 INC.
 Union
 
                                            Case No. 0-AR-161
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR JOHN P. YATSKO FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE OVER
 THE INTERPRETATION OF A PROVISION OF THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT RELATING TO THE PARTICULAR TECHNICIANS WHO WERE REQUIRED TO
 WEAR THEIR MILITARY UNIFORMS WHILE A "STANDARDIZATION AND EVALUATION
 INSPECTION" WAS TAKING PLACE.  THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
    THE ARBITRATOR FIRST HELD THAT THE GRIEVANCE WAS ARBITRABLE FINDING,
 CONTRARY TO THE AGENCY'S ASSERTIONS, THAT THE FILING OF AN UNFAIR LABOR
 PRACTICE CHARGE BY THE UNION DID NOT PRECLUDE THE USE OF THE ARBITRATION
 PROCESS IN THIS CASE.  AS TO THE MERITS OF THE CASE, THE ARBITRATOR
 INTERPRETED THE AGREEMENT TO FIND THAT THE PARTIES HAD INTENDED THAT
 ONLY THOSE TECHNICIANS "WHO ARE ENGAGED IN THE OPERATION'S EXERCISE"
 COULD BE ORDERED INTO UNIFORM, CONCLUDING THAT "(N)O SIGNIFICANT PURPOSE
 IS SERVED BY INCLUDING PEOPLE WORKING IN THE WAREHOUSE OR IN MAINTENANCE
 SHOPS FOR EXAMPLE WHO HAVE NO ROLE TO PLAY AND MIGHT EVEN BE UNAWARE
 THAT AN INSPECTION IS TAKING PLACE." CONSEQUENTLY, THE ARBITRATOR
 SUSTAINED THE GRIEVANCE.
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S
 AWARD VIOLATES LAW, SPECIFICALLY SECTION 7116(D) OF THE STATUTE.  /1/ IN
 SUPPORT OF THIS EXCEPTION THE AGENCY ALLEGES THAT THE UNION INVOKED BOTH
 ARBITRATION PROCEEDINGS AND UNFAIR LABOR PRACTICE PROCEEDINGS IN THIS
 MATTER.  THE AGENCY ARGUES THAT SINCE THE ISSUES WERE IDENTICAL IN EACH
 ACTION, THE ARBITRATOR WAS OBLIGATED BY LAW TO FIND THE GRIEVANCE
 NONARBITRABLE.
 
    IN THIS CASE, THE ACTIVITY HAS FAILED TO ESTABLISH THAT THE
 ARBITRATOR'S AWARD FINDING THE GRIEVANCE ARBITRABLE VIOLATES LAW.
 WITHOUT DECIDING WHETHER THE ISSUES RAISED IN THE UNFAIR LABOR PRACTICE
 AND THE GRIEVANCE WERE IDENTICAL, AS ALLEGED BY THE AGENCY, IT IS CLEAR
 FROM THE RECORD IN THIS CASE THAT THE GRIEVANCE PROCEEDINGS WERE BEGUN
 PRIOR TO THE FILING OF THE UNFAIR LABOR PRACTICE CHARGE.  CONSEQUENTLY,
 UNDER SECTION 7116(D), THE SELECTION OF PROCEDURES WAS IN FAVOR OF THE
 GRIEVANCE PROCEDURE, AND THE ARBITRAT