13:0535(89)AR - Overseas Education Association and DOD Dependents Schools (DODDS), Pacific Region -- 1983 FLRAdec AR
[ v13 p535 ]
The decision of the Authority follows:
13 FLRA No. 89 OVERSEAS EDUCATION ASSOCIATION Union and DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS (DODDS), PACIFIC REGION Activity Case No. 0-AR-372 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Thomas Q. Gilson 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 dispute in this matter concerns the intra-regional transfer program for teachers established by the parties' collective bargaining agreement. When the Activity notified the Union that the Agency had issued a directive cancelling the program, the Union filed a grievance alleging a violation of the collective bargaining agreement. Subsequently, the Union agreed with the Activity that the grievance would be rejected pending deliberations between the parties. Shortly thereafter, the Union's national office filed an unfair labor practice charge with the Authority over a number of alleged unilateral changes by management in working conditions, including the cancellation of the intra-regional transfer program. The Authority's Regional Director refused to issue a complaint in the matter. When the Union attempted to reactivate the grievance, the Activity cancelled it pursuant to Article 13, Section 6F of the agreement which provides that a grievance will be cancelled upon notification that the same matter has been presented to and accepted for adjudication by an agency authorized to review it. The matter was not resolved and was submitted to arbitration. The Arbitrator held that in the circumstances of this case the Activity acted in accordance with the agreement when it cancelled the grievance. In this respect the Arbitrator determined that there had been an adjudication of this matter within the meaning of the agreement. Consequently, the Arbitrator concluded that further consideration of the grievance was precluded, and as his award the Arbitrator denied the grievance. In its first exception, the Union contends that the award is contrary to section 7116(d) of the Statute. /1/ In support of its exception the Union maintains that because the grievance was filed first, the determination not to issue a complaint on the unfair labor practice charge could not properly preclude the resolution of the grievance on the merits. The Authority concludes that the Union has failed to establish that the Arbitrator's award is contrary to section 7116(d). The Arbitrator expressly based his award on a specific provision of the parties' collective bargaining agreement and the Union has not demonstrated that the Arbitrator's enforcement of the agreement in this case is deficient. It is clear that the award is based on the interpretation and application of the cancellation provision of the parties' collective bargaining agreement. In denying the grievance the Arbitrator determined that there had been an appropriate "adjudication" within the meaning of the cancellation provision and that therefore management properly cancelled the grievance in accordance with the express terms of the parties' agreement. The Union has not shown in its exception in what manner section 7116(d) applies to render deficient the award which simply applies the express agreement of the parties to a relevant factual situation. In its second exception the Union essentially contends that the Arbitrator's determination that the refusal to issue a complaint constituted an adjudication by the Authority is contrary to law. This exception, however, merely constitutes disagreement with the Arbitrator's interpretation and application of a specific term of the parties' agreement and consequently no basis for finding the award deficient is provided. See National Federation of Federal Employees, Local 1418 and U.S. International Communication Agency, Voice of America, 9 FLRA No. 137 (1982). Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., December 22, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(d) provides: (d) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.