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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
                                            Case No. 0-AR-372
    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
    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.