19:0549(74)AR - DOD Dependents Schools, Atlantic Region and Overseas Education Association, Inc. -- 1985 FLRAdec AR
[ v19 p549 ]
The decision of the Authority follows:
19 FLRA No. 74 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, ATLANTIC REGION Activity and OVERSEAS EDUCATION ASSOCIATION, INC. Union Case No. O-AR-781 DECISION This matter is before the Authority on an exception to the award of Arbitrator Bernard Cushman filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The dispute before the Authority concerns the portion of the Arbitrator's award finding the grievances in the matter arbitrable under the parties' collective bargaining agreement, which agreement had been negotiated under Executive Order 11491 before enactment of the Statute. The grievances related to the housing provided for teachers at Guantanamo Bay, Cuba. The Activity argued before the Arbitrator that since housing on the base was within the control and jurisdiction of the Department of the Navy, the grievances were excluded from coverage of the parties' negotiated grievance procedure by a particular provision of their agreement. The Activity further argued in that regard that since the parties had not renegotiated the grievance procedure, the alleged exclusion remained in effect by operation of section 7135(a)(1) of the Statute, /1/ and that the grievants were limited to use of the Navy's administrative grievance procedure to resolve their grievances. The Arbitrator rejected the Activity's arguments and found, among other things, that the provision in the agreement relied upon by the Activity did not constitute a bar to arbitration of the grievances and, moreover, that the provision contained "a 'built-in' contradiction", which the Arbitrator resolved in favor of finding the grievances arbitrable. In its exception, the Activity argues that that portion of the Arbitrator's award is contrary to law essentially because he improperly interpreted section 7121(b)(3)(C) /2/ and section 7135 of the Statute. Upon careful consideration of the record before the Authority, including the contentions of the parties, the Authority concludes that the Activity has failed to establish that the Arbitrator's award finding the grievances arbitrable under the parties' agreement is contrary to law. As indicated above, the Arbitrator interpreted the provision of the agreement relied upon by the Activity as containing a contradiction and he resolved that contradiction in favor of finding the grievances arbitrable. Thus, the portion of the award here in dispute is clearly based, in substantial part, upon the Arbitrator's interpretation and application of the pertinent provision of the parties' agreement. Therefore, the Authority finds that the Activity's arguments in support of its exception constitute disagreement with the Arbitrator's interpretation and application of the parties' agreement and with his reasoning in resolving the arbitrability issue. It is well-established that such disagreement provides no basis for finding an award deficient under the Statute. E.g., Veterans Administration Hines Hospital and Illinois Nurses Association, Hines Unit, 13 FLRA 131 (1983). Accordingly, since the Activity has failed to establish that the disputed portion of the Arbitrator's award is deficient, the Activity's exception is denied. /3/ Issued, Washington, D.C., August 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7135(a)(1) provides, in pertinent part: (a) Nothing contained in this chapter shall preclude-- (1) the renewal or continuation of . . . a lawful agreement between an agency and an exclusive representative of its employees, which is entered into before the effective date of this chapter(.) /2/ Section 7121(b)(3)(C) provides, in pertinent part: Sec. 7121. Grievance procedures . . . . (b) Any negotiated grievance procedure referred to in section (a) of this section shall-- . . . . (3) include procedures that-- . . . . (c) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration . . . . /3/ In light of this decision, the Authority need not discuss the Arbitrator's interpretation of sections 7121 or 7135 of the Statute or his extraneous finding concerning the Navy's administrative grievance procedure to which the Activity also excepted. The Authority also notes that the Arbitrator properly found that the Department of the Navy was not a party to this proceeding and that the Arbitrator was not empowered to issue an order against it. Thus the remedy directed by the Arbitrator was limited to action which could properly be taken by the Activity herein, Department of Defense Dependents Schools, Atlantic Region.