The Adjutant General of Pennsylvania (Agency) and The Pennsylvania State Council Association of Civilian Technicians, Inc. (Union) (Authority decision, March 19, 1982)

Final FLRA decision. The Authority resolved exceptions to an arbitral award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116; this decision does not decide one.

Plain-English summary

An arbitrator sustained a grievance over which Pennsylvania National Guard civilian technicians had to wear uniforms during an inspection. The agency argued that a related unfair-labor-practice charge barred arbitration and that the arbitrator misread the labor agreement. The Authority found that the grievance had been filed first, making that procedure the valid choice, and rejected the contract argument as disagreement with the arbitrator. It denied the exceptions.

Decision snapshot

• Authority: 5 U.S.C. § 7116(d), 5 U.S.C. § 7122(a), 5 U.S.C. § 7123(a)(1).
• Outcome: The award sustaining the uniform grievance was upheld.
• Key point: A later unfair-labor-practice charge did not displace the earlier grievance.

Full text (FLRA public release)

[ v08 p208 ]

08:0208(44)AR

The decision of the Authority follows:

8 FLRA No. 44

THE ADJUTANT GENERAL
OF PENNSYLVANIA
Agency

and

THE PENNSYLVANIA STATE
COUNCIL ASSOCIATION OF
CIVILIAN TECHNICIANS,
INC.
Union

Case No. 0-AR-161

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR JOHN P. YATSKO FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR PART 2425). THE UNION FILED AN OPPOSITION.

ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE OVER
THE INTERPRETATION OF A PROVISION OF THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT RELATING TO THE PARTICULAR TECHNICIANS WHO WERE REQUIRED TO
WEAR THEIR MILITARY UNIFORMS WHILE A "STANDARDIZATION AND EVALUATION
INSPECTION" WAS TAKING PLACE. THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO
ARBITRATION.

THE ARBITRATOR FIRST HELD THAT THE GRIEVANCE WAS ARBITRABLE FINDING,
CONTRARY TO THE AGENCY'S ASSERTIONS, THAT THE FILING OF AN UNFAIR LABOR
PRACTICE CHARGE BY THE UNION DID NOT PRECLUDE THE USE OF THE ARBITRATION
PROCESS IN THIS CASE. AS TO THE MERITS OF THE CASE, THE ARBITRATOR
INTERPRETED THE AGREEMENT TO FIND THAT THE PARTIES HAD INTENDED THAT
ONLY THOSE TECHNICIANS "WHO ARE ENGAGED IN THE OPERATION'S EXERCISE"
COULD BE ORDERED INTO UNIFORM, CONCLUDING THAT "(N)O SIGNIFICANT PURPOSE
IS SERVED BY INCLUDING PEOPLE WORKING IN THE WAREHOUSE OR IN MAINTENANCE
SHOPS FOR EXAMPLE WHO HAVE NO ROLE TO PLAY AND MIGHT EVEN BE UNAWARE
THAT AN INSPECTION IS TAKING PLACE." CONSEQUENTLY, THE ARBITRATOR
SUSTAINED THE GRIEVANCE.

IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S
AWARD VIOLATES LAW, SPECIFICALLY SECTION 7116(D) OF THE STATUTE. /1/ IN
SUPPORT OF THIS EXCEPTION THE AGENCY ALLEGES THAT THE UNION INVOKED BOTH
ARBITRATION PROCEEDINGS AND UNFAIR LABOR PRACTICE PROCEEDINGS IN THIS
MATTER. THE AGENCY ARGUES THAT SINCE THE ISSUES WERE IDENTICAL IN EACH
ACTION, THE ARBITRATOR WAS OBLIGATED BY LAW TO FIND THE GRIEVANCE
NONARBITRABLE.

IN THIS CASE, THE ACTIVITY HAS FAILED TO ESTABLISH THAT THE
ARBITRATOR'S AWARD FINDING THE GRIEVANCE ARBITRABLE VIOLATES LAW.
WITHOUT DECIDING WHETHER THE ISSUES RAISED IN THE UNFAIR LABOR PRACTICE
AND THE GRIEVANCE WERE IDENTICAL, AS ALLEGED BY THE AGENCY, IT IS CLEAR
FROM THE RECORD IN THIS CASE THAT THE GRIEVANCE PROCEEDINGS WERE BEGUN
PRIOR TO THE FILING OF THE UNFAIR LABOR PRACTICE CHARGE. CONSEQUENTLY,
UNDER SECTION 7116(D), THE SELECTION OF PROCEDURES WAS IN FAVOR OF THE
GRIEVANCE PROCEDURE, AND THE ARBITRATOR WAS UNDER NO OBLIGATION TO DEFER
TO THE UNFAIR LABOR PRACTICE PROCEEDINGS. /2/ SEE INTERNAL REVENUE
SERVICE, CHICAGO, ILLINOIS AND NATIONAL TREASURY EMPLOYEE UNION,
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 10, 3 FLRA 478,
485-487(1980). THEREFORE, THE AGENCY'S FIRST EXCEPTION PROVIDES NO
BASIS FOR FINDING THE AWARD DEFICIENT.

IN ITS SECOND EXCEPTION THE AGENCY ARGUES THAT THE ARBITRATOR'S
DECISION "FAILS TO DRAW ITS ESSENCE FROM THE NEGOTIATED AGREEMENT AND
MANIFESTS A CLEAR UNFAITHFULNESS TO THE MEANING OF THE CONTRACT
LANGUAGE."

THE AGENCY'S SECOND EXCEPTION CONSTITUTES NOTHING MORE THAN
DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE
AGREEMENT. IT IS WELL ESTABLISHED THAT THIS PROVIDES NO BASIS FOR
FINDING THE AWARD DEFICIENT. E.G., AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, (AFL-CIO) LOCAL 1770 AND HEADQUARTERS XVIII AIRBORNE CORPS
AND FORT BRAGG, FORT BRAGG, N.C., 6 FLRA NO. 62(1981).

FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., MARCH 19, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ 5 U.S.C. 7116(D) PROVIDES IN RELEVANT PART:

(D) . . . 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.

/2/ THE REGIONAL DIRECTOR REFUSED, ON OTHER GROUNDS, TO ISSUE A
COMPLAINT IN THE UNFAIR LABOR PRACTICE PROCEEDING AND THE SUBSEQUENT
APPEAL FROM THAT DECISION WAS DENIED BY THE GENERAL COUNSEL WHO FOUND IT
"UNNECESSARY, UNDER THE CIRCUMSTANCES, TO DETERMINE WHETHER 7116(D) OF
THE STATUTE PRECLUDED FURTHER CONSIDERATION OF ALL OR PART OF THE UNFAIR
LABOR PRACTICE CHARGE HEREIN IN VIEW OF THE FACT THAT A PRIOR GRIEVANCE
HAD BEEN FILED."