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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
                                            Case No. O-AR-781
    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
                                       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
    /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