Philadelphia Regional Office, Social Security Administration and American Federation of Government Employees, Local 3186 (Authority decision, July 2, 1984)

Final FLRA decision. The Authority denied exceptions to an arbitration award under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

A Social Security office transferred two employees to another local office. AFGE Local 3186 grieved, but an arbitrator found no violation of the labor agreement and denied the grievance. The union then argued that the transfer conduct violated statutory representation and unfair labor practice rules. The Authority found that the arbitration had concerned contract claims and that the union could not raise the same conduct as unfair labor practice allegations for the first time in exceptions. It denied the exceptions and left the grievance denial in place.

Decision snapshot

• Authority: Election between grievance and unfair labor practice procedures under 5 U.S.C. § 7116(d).
• Outcome: Union exceptions denied; grievance denial upheld.
• Key point: The union could not turn contract claims submitted to arbitration into new unfair labor practice claims on review.

Full text (FLRA public release)

[ v15 p211 ]

15:0211(41)AR

The decision of the Authority follows:

15 FLRA No. 41

THE PHILADELPHIA REGIONAL OFFICE,
DISTRICT OFFICE OPERATIONS,
SOCIAL SECURITY ADMINISTRATION
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3186
Union

Case No. O-AR-240

DECISION

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 Statute.

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 arbitration award deficient.

In its other exceptions the Union contends that the central fact underlying the award is erroneous and that the award does not draw its essence from the collective bargaining agreement. However, these exceptions merely constitute disagreement with the Arbitrator's interpretation of the agreement and provide no basis for finding the award deficient.

Accordingly, the Union's exceptions are denied.

Issued, Washington, D.C., July 2, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY