15:0211(41)AR - The Philadelphia Regional Office, District Office Operations, SSA and AFGE Local 3186 -- 1984 FLRAdec AR

[ v15 p211 ]
The decision of the Authority follows:

 15 FLRA No. 41
                                            Case No. O-AR-240
    This matter is before the Authority on exceptions to the award of
 Arbitrator Stanley H. Sergent, Jr. 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 concerns the Activity's transfer of two
 employees from one local office to another.  A grievance was filed and
 submitted to arbitration claiming that the Activity's conduct violated a
 number of provisions of the parties' collective bargaining agreement.
 The Arbitrator considered the pertinent provisions of that agreement and
 determined in the circumstances presented that there was no basis for
 finding that the Activity's conduct in any manner violated the
 agreement.  Accordingly, as his award, he denied the grievance.
    In its first exception the Union contends that the Arbitrator denied
 the employees and the Union rights set forth in sections 7114 and 7116
 of the Statute.  Specifically, the Union claims that the Activity denied
 employees their right to be represented by the Union and denied the
 Union its right of representation and that the Arbitrator therefore
 wrongfully upheld the Activity's conduct in violation of section
 7116(a)(1), (5), and (8) of the Statute.  The Union further claims that
 information about the transfer was wrongfully withheld from it in
 violation of section 7116(a)(1), (5), and (8) and that formal
 discussions with employees were held by the Activity without advance
 notice to the Union and without providing the Union an opportunity to be
 present in violation of section 7114(a)(1) and 7114(a)(2)(A) of the
    The Authority concludes that this exception provides no basis for
 finding the award deficient under the Statute.  To the extent that it is
 contended that the award is contrary to the Statute because the
 Arbitrator failed to find the Activity's conduct violative of the
 collective bargaining agreement, such contention constitutes nothing
 more than disagreement with the Arbitrator's interpretation of the
 agreement and provides no basis for finding the award deficient.  See,
 e.g., Immigration and Naturalization Service, Department of Justice,
 U.S. Government and American Federation of Government Employees, Local
 No. 1656, 7 FLRA No. 83 (1982).  Furthermore, the Union's contention
 that the award cannot be upheld because the Activity's disputed conduct
 allegedly constitutes unfair labor practices under the Statute is
 misplaced and cannot provide a basis for finding the award deficient.
 Section 7116(d) of the Statute provides that "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." As noted,
 the sole issue submitted to and resolved by the Arbitrator was whether
 the Activity's conduct violated the parties' collective bargaining
 agreement as claimed by the Union.  Thus, in this case, the Union opted
 to file a grievance rather than an unfair labor practice charge.  In so
 doing, the Union chose to rely upon alleged contract violations rather
 than provisions of the Statute.  In accordance with section 7116(d),
 that choice now precludes the Union from alleging that the same conduct
 constitutes unfair labor practices.  It follows that the Union's choice
 of the grievance forum also precludes the unfair labor practice
 allegations from being raised for the first time before the Authority as
 a basis for finding the resulting arbitratio