---

 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." 
 
 
 

---