36:0441(54)AR - - Veterans Affairs, VA Medical Center, Newington, CT and NAGE Local R1-109 - - 1990 FLRAdec AR - - v36 p441



[ v36 p441 ]
36:0441(54)AR
The decision of the Authority follows:


36 FLRA No. 54

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

VETERANS ADMINISTRATION MEDICAL CENTER

NEWINGTON, CONNECTICUT

(Activity)(1)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109

(Union)

0-AR-1676

DECISION

July 26, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Richard G. Higgins. The Arbitrator determined that the grievance was barred by section 7116(d) of the Federal Service Labor-Management Relations Statute (the Statute).

The Union filed an exception under section 7122(a) of the Statute and part 2425 of the Authority's Rules and Regulations. The Veterans Administration (the Agency) filed an opposition to the Union's exception on behalf of the Activity.

We conclude that the Union fails to establish that the award is contrary to section 7116(d). Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

On August 2, 1987, the Activity reassigned Robert DeWayne from a GS-9 photographer position to a GS-9 computer specialist position. Prior to the reassignment, the Activity did not post a position vacancy announcement for the computer specialist position.

On August 6, 1987, the Union filed an unfair labor practice (ulp) charge against the Activity. As the basis for the charge, the Union alleged, among other things, that the Activity "[u]nilaterally suspended provisions of the Collective Bargaining Agreement regarding the Reduction in Force (RIF) and reassignment of Mr. Robert DeWayne, Photographer Medical Media Service." Arbitrator's Award at 7 (quoting from the Union's charge).

On August 10, 1987, the Union filed a grievance. As the basis for the grievance, the Union alleged, among other things, that the reassignment of DeWayne was in violation of specific provisions of the parties' collective bargaining agreement.

On October 30, 1987, the Authority's Regional Director determined not to issue a complaint. In making this determination, the Regional Director concluded that "the Activity's decision to laterally transfer an employee rather than fill the computer specialist vacancy through merit promotion procedures did not amount to repudiation of the merit promotion provisions of the National Agreement between the parties as alleged in the charge." Id. at 8 (quoting from Regional Director's determination not to issue a complaint). The Regional Director further concluded that the dispute over the Activity's conduct involved differing and arguable interpretations of the parties' collective bargaining agreement, a matter which does not rise to the level of an unfair labor practice and is more appropriately resolved under the parties' grievance and arbitration procedures. Id. at 8.

The grievance was not resolved and was submitted to arbitration. At arbitration, the Activity contended that the grievance was barred by the earlier-filed ulp charge. The Union contended that the grievance was not barred by the ulp charge because the issues in the charge and the grievance were different and the issue in the grievance had not been "raised" under the ulp procedures within the meaning of section 7116(d) of the Statute by the earlier-filed ulp charge. Id. at 11.

The Arbitrator determined that the grievance was barred. The Arbitrator stated that under decisions of the Authority, in order for a grievance to be precluded under section 7116(d): (1) the issue which is the subject matter of the grievance must be the same as the issue which is the subject matter of the ulp; (2) such issue must have been earlier raised under the ulp procedures; and (3) the selection of the ulp procedures must have been in the discretion of the aggrieved party. Id. at 12 (quoting Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA 1001 (1985)).

The Arbitrator found that all the elements of section 7116(d) had been met to preclude the grievance. In finding that the issues of the ulp charge and the grievance were the same, the Arbitrator stated as follows:

I have compared the allegations contained in the ULP against those in the grievance and they are "substantially identical." Each document asserts that the reassignment of Mr. DeWayne was in violation of the Collective Bargaining Agreement. In the ULP charge the Union asserts that the Activity's personnel actions regarding Mr. DeWayne "Unilaterally suspended provisions of the Collective Bargaining Agreement. . . ." In the grievance it states "Selection of Mr. Robert DeWayne . . . is in violation of the Master Agreement. . . ."

Arbitrator's Award at 13. The Arbitrator also noted the Regional Director's conclusion that the Activity's actions "did not amount to repudiation of the merit promotion provisions of the National Agreement between the parties as alleged in the charge." Id. (quoting from the Regional Director's determination not to issue a complaint). In the Arbitrator's view, "such a finding establishes that in the ULP charge allegations were made, as in the grievance, that the contract had been violated by the personnel action at issue." Id.

In finding that the issue in the grievance had been "raised" under the ulp procedures within the meaning of section 7116(d), the Arbitrator cited Authority precedent that an issue is raised within the meaning of section 7116(d) at the time of the filing of the charge even if the charge is not adjudicated on the merits. Id. at 13-14.

Accordingly, the Arbitrator concluded that the case was not arbitrable because the grievance was barred by section 7116(d) of the Statute.

III. Positions of the Parties

A. The Union

The Union contends that the award is deficient because the Arbitrator erred in applying section 7116(d) of the Statute to find that the grievance was barred. The Union argues that although the factual basis of the charge and the grievance was the same, the issues were separate and distinct. The Union claims that the ulp issue of whether the Activity's "temporary suspension of the collective bargaining agreement" was violative of section 7116(a) of the Statute is separate and distinct from the grievance issue of whether the Activity violated express provisions of the collective bargaining agreement. Union's Exception at 2. The Union maintains that the separateness of these two issues is supported by the court's decision in Overseas Education Association v. FLRA, 824 F.2d 61 (D.C. Cir. 1987) (OEA).

B. The Agency

The Agency argues that the Union's exception constitutes nothing more than disagreement with the Arbitrator's factual determination that the issue which was the subject matter of the grievance is the same as the issue which was the subject matter of the ulp charge. The Agency maintains that such disagreement provides no basis for finding the Arbitrator's award deficient.

IV. Analysis and Conclusion

We conclude that the Union fails to establish that the award is contrary to section 7116(d) of the Statute.

Section 7116(d) effectively provides that when, in the discretion of the aggrieved party, an issue has been raised as an unfair labor practice, the issue may not subsequently be raised as a grievance. Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA 1001 (1985), reversed and remanded as to other matters sub nom. Overseas Education Association v. FLRA, 824 F.2d 61 (D.C. Cir. 1987) (Department of Defense Dependents Schools). The elements of section 7116(d) that must attach in order for a grievance to be precluded are: (1) the issue which is the subject matter of the grievance is the same as the issue which is the subject matter of the unfair labor practice; (2) such issue was earlier raised under the unfair labor practice procedures; and (3) the selection of the unfair labor practice procedures was in the discretion of the aggrieved party. Department of Defense Dependents Schools, 17 FLRA at 1002.

In the instant case, it is not disputed that the selection of the ulp procedures was in the grievant's discretion. The Union, however, contends in its exceptions that the ulp charge and the grievance did not present the same issue. Further, the Union contended before the Arbitrator that the issue in the grievance was not "raised" under the ulp procedures within the meaning of section 7116(d) of the Statute by the earlier-filed ulp charge. Arbitrator's Award at 11.

We reject the Union's contention that the ulp issue of whether the Activity repudiated the agreement in violation of section 7116(a) of the Statute is separate and distinct from the grievance issue of whether the Activity violated provisions of the agreement. We find that the Arbitrator correctly applied section 7116(d) in determining that the issues in the ulp charge and the grievance were the same because they both alleged that the Activity's actions in reassigning DeWayne violated the parties' collective bargaining agreement. See Department of the Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA 198 (1983), reversed and remanded as to other matters sub nom. AFGE Local 2612 v. FLRA, 739 F.2d 87 (2d Cir. 1984) (Griffiss Air Force Base). In Griffiss Air Force Base, the ulp complaint alleged, in part, that the respondent violated the Statute by repudiating its existing collective bargaining agreement in failing to remit to the union the full amount of union dues withheld pursuant to Article 35 of the agreement. The earlier-filed grievance alleged that the respondent violated Article 35 of the agreement in failing to remit to the union the full amount of union dues withheld. The Authority adopted the judge's determination that this allegation of the ulp complaint was barred by section 7116(d). The judge found that the issues raised by the ulp allegation and by the grievance were the same because they both alleged a violation of Article 35 of the collective bargaining agreement as a basis for the action. 12 FLRA at 208.

Furthermore, we reject the Union's claim that its position is supported by the court's decision in OEA. In OEA, the court noted that the arbitrator had found that there were different factual predicates for the ulp charge and the grievance and that therefore the charge and the grievance presented different issues. The court held that "in light of the limited scope of the FLRA's review of arbitral awards, it was error for the Authority to override the arbitrator's determination and come to the opposite conclusion." 824 F.2d at 72 (citation omitted). Applying that same limited scope of review in this case where the Arbitrator found that the factual predicate and the basis for the charge and the grievance were the same, we do not believe that we may override the Arbitrator's determination and come to the opposite conclusion. Thus, in our view, OEA supports our conclusion, even though in that case the arbitrator had found the grievance to be arbitrable. We adhere to the determination of Griffiss Air Force Base that when both the ulp charge and the grievance concern the same conduct and are based on the parties' collective bargaining agreement by alleged repudiation, breach, or violation, the charge and grievance raise the same issue within the meaning of section 7116(d) of the Statute.

We also find that the Arbitrator correctly applied section 7116(d) in determining that the issue in the grievance had been earlier raised under the ulp procedures.

The Authority has determined that an issue is "raised" within the meaning of section 7116(d) at the time of the filing of a grievance or an unfair labor practice charge even if the grievance or charge is not adjudicated on the merits. For example, Headquarters, Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, Local 2429, 17 FLRA 969 (1985) (Los Angeles Air Force Station); Department of Defense Dependents Schools; Lowry Air Force Base, Denver Colorado, 32 FLRA 792, 802 (1988). In Los Angeles Air Force Station, the Authority indicated that when the filing of the grievance or the charge is the determinative factor rather than subsequent action on the charge or the grievance, the purpose of the Statute is effectuated because the aggrieved party is assured of its right to make an election of procedures. 17 FLRA at 971. The Authority also explained that recognition of the filing date as the operative factor in the election of procedures under section 7116(d) accords with section 7121(d) and (e) of the Statute, which also grants an aggrieved employee the option of raising a matter under various procedures, but recognizes the filing date as the determinative factor as to when the election of procedures has been exercised. Id. Based on this precedent, the filing of the charge in this case was the determinative factor rather than subsequent action on the charge.(2)

Accordingly, we will deny the Union's exception.

V. Decision

The Union's exception is denied.




FOOTNOTES:
(If blank,