17:0969(131)AR - HQ, Space Division, Los Angeles Air Force Station, CA and AFGE Local 2429 -- 1985 FLRAdec AR

[ v17 p969 ]
The decision of the Authority follows:

 17 FLRA No. 131
                                            Case No. 0-AR-724
    This matter is before the Authority on exceptions to the award of
 Arbitrator Michael D. Rappaport filed by the Union under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
    The grievance in this case involves the application of certain
 appraisal procedures to bargaining-unit employees.  A grievance was
 filed and submitted to arbitration.  The Arbitrator stated the initial
 issue to be whether parts of the grievance were precluded by an
 earlier-filed unfair labor practice charge.  As to the disputed portions
 of the grievance, the Arbitrator determined that those portions were
 precluded by the unfair labor practice charge.  In this respect the
 Arbitrator ruled that the issues of the charge and the grievance were
 essentially the same.  He further ruled that these issues had been
 raised under the unfair labor practice procedures within the meaning of
 section 7116(d) of the Statute /1/ despite the unfair labor practice
 charge having been withdrawn.  As the Arbitrator stated:
          (I)n a clear attempt to reduce forum shopping, the emphasis
       seems to be in the initial choice of forum . . . (and) the fact
       that the matter was subsequently withdrawn, after the forum had
       been selected, would have little or no bearing on the matter.  The
       language of the Statute itself talks in terms of "raising" the
       issue under either procedure.  It does not talk in terms of
       pursuing the matter to its conclusion or even in terms of hearing
       the matter under either procedure. . . .  The issue is raised when
       the forum is selected . . . (and) the Union selected as the forum
       to raise the issues in question the unfair labor practice
 As to the portions of the grievance that were not precluded, the
 Arbitrator stated the issue to be whether the parties' collective
 bargaining agreement had been violated by the Activity's implementation
 of the appraisal procedures and he determined that the Activity had not
 violated the agreement.  Accordingly, the Arbitrator denied the
    In its first exception the Union contends that the Arbitrator erred
 by finding portions of the grievance precluded by section 7116(d) of the
 Statute.  The Union essentially argues that the disputed portions of the
 grievance were not barred by the unfair labor practice charge because
 the charge was withdrawn and never adjudicated and because the issues
 were different.
    The Authority concludes that the Union's exception provides no basis
 for finding that the Arbitrator's award is contrary to section 7116(d)
 of the Statute.  As noted, the Arbitrator ruled that the issues were
 essentially the same and the Union in its exception fails to establish
 otherwise.  See Department of the Treasury, U.S. Customs Service, Region
 VIII, San Francisco, California, 13 FLRA 631 (1984).  The Arbitrator
 also ruled that the filing of the unfair labor practice charge
 constituted the raising of the issues under the unfair labor practice
 procedures, which constituted the election of those procedures and
 precluded the raising of those issues subsequently as a grievance.  The
 Arbitrator found that the critical event with respect to this aspect of
 section 7116(d) occurs when the procedures are selected by the filing of
 a charge or a grievance.  In this regard, contrary to the argument of
 the Union, the Authority finds that the Arbitrator properly interpreted
 and applied section 7116(d) to the Union's invocation of the unfair
 labor practice procedures.  Cf. Department of the Air Force, Griffiss
 Air Force Base, Rome, New York, 12 FLRA 198 (1983) (In a finding adopted
 by the Authority, the judge found a portion of the complaint precluded
 by an earlier-filed grievance despite the grievance having been
 withdrawn without resolution.).  More specifically, the Arbitrator's
 determination that the disputed portions of the grievance had been
 "raised" within the meaning of section 7116(d) at the time of the filing
 of the unfair labor practice charge, despite the charge subsequently
 having been withdrawn and never adjudicated, is consistent with the
 ordinary meaning of the term "raised," which is "to bring about;  set in
 motion." Webster's Third New International Dictionary (1976 ed.).
 Furthermore, this determination is fully consonant with the language and
 purpose of the Statute in placing the election of procedures squarely
 "in the discretion of the aggrieved party." By making the filing of the
 charge the determinative factor rather than subsequent action respecting
 the charge, the Arbitrator's award effectuates this purpose of the
 Statute by having assured the exercise by the Union of the election of
 the unfair labor practice procedures.  Likewise, the Arbitrator's
 recognition of the filing date as the operative factor in the election
 of procedures accords with section 7121(d) and (e) of the Statute which
 similarly grant an aggrieved employee an option of raising a matter
 under various procedures and which explicitly recognize filing as the
 determinative factor in when the election of procedures is exercised.
 Consequently, the Union has failed to establish that the award is
 deficient under the Statute.  See Overseas Education Association and
 Department of Defense Dependents Schools, 16 FLRA No. 95 (1984).
    In its other exceptions the Union essentially contends that the
 Arbitrator's denial of the other portions of the grievance is deficient
 in numerous respects.  However, as noted, the Arbitrator's award denying
 such portions of the grievance was expressly based on his determination
 that the Activity had not violated the collective bargaining agreement.
 Thus, the Union's exceptions constitute nothing more than disagreement
 with the Arbitrator's interpretation and application of the parties'
 agreement and provide no basis for finding the award deficient.  See,
 e.g., American Federation of Government Employees, Local 1858, AFL-CIO
 and U.S. Army Missile Command, Missile and Munitions Center and School,
 Redstone Arsenal, Alabama, 13 FLRA 343 (1983).
    Accordingly, the Union's exceptions are denied.  Issued, Washington,
 D.C., May 10, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 7116(d) of the Statute pertinently provides:
          (I)ssues 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.