36:0448(55)AR - - HHS, SSA, Office of Hearings and Appeals, Region II and AFGE Local 1760 - - 1990 FLRAdec AR - - v36 p448



[ v36 p448 ]
36:0448(55)AR
The decision of the Authority follows:


36 FLRA No. 55

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

REGION II

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1760

(Union)

O-AR-1762

DECISION

July 26, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Jonas Aarons. The grievance alleged that the Activity violated the parties' collective bargaining agreement by prohibiting the playing of radios in work areas by employees at its Manhattan office. The Arbitrator determined that the grievance was not barred by an earlier-filed unfair labor practice charge. On the merits, the Arbitrator sustained the grievance.

The U.S. Department of Health and Human Services (the Agency) filed exceptions to the award on behalf of the Activity 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 Union filed an opposition to the Agency's exceptions.

We conclude that the Agency fails to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On March 17, 1986, the Activity prohibited the playing of radios and televisions in work areas by employees at its Newark office. On April 7, 1986, the Union filed an unfair labor practice (ulp) charge, Case No. 2-CA-60215, alleging, among other things, that the prohibition of the playing of radios and televisions in work areas constituted a change in conditions of employment and that the Union had not been provided with notice and an opportunity to bargain on the change in violation of section 7116(a)(1) and (5) of the Statute.

On June 30, 1986, the Authority's Regional Director determined not to issue a complaint. The Regional Director concluded that there was no duty to bargain over the substance of the decision because the matter concerned the methods and means of performing work and the Activity had elected not to bargain. The Regional Director further determined that there was no duty to bargain over the impact of the decision because the impact was no more than de minimis. On January 27, 1987, the Office of the General Counsel of the Authority sustained the Regional Director's determination not to issue a complaint.

On April 13, 1988, the Activity prohibited employees from playing radios in work areas at its Manhattan office. On May 6, 1988, the Union filed a grievance, alleging, among other things, that the prohibition of the playing of radios in work areas constituted a change in a past practice without the Union having been provided with notice and an opportunity to bargain on the change in violation of specified provisions of the parties' collective bargaining agreement.

The Union's grievance in this case concerning the playing of radios in the Activity's Manhattan office was not resolved and was submitted to arbitration. At arbitration, the Activity contended that the grievance was barred by the earlier-filed ulp charge and its resolution.

The Arbitrator stated that in order for the grievance to be barred by the principles of res judicata, collateral estoppel, or election of remedies, as claimed by the Activity, he was required to find "that there [had] been an adjudication of the relevant issue with an appropriate similarity of the question posed and that the adjudication had participation by the same parties." Arbitrator's Award at 14. The Arbitrator determined that he could not make such a finding. He concluded that there had not been an adjudication of the issue because there had been only a determination not to issue a complaint. Id. at 15. He also indicated that the relevant issue involved in the Newark office case was not sufficiently similar to the question presented to him. He found a number of factors that differentiated the two cases. He noted that since the determination not to issue a complaint in the Newark office case, the Authority had modified its view on the duty to bargain over impact and implementation. He also noted that with the extension of the prohibition to the Manhattan office, the evaluation of the impact on unit employees might be different because the impact on employees had spread. He further noted that the two cases were differentiated by the coverage of the prohibitions: in Newark the playing of both radios and televisions had been prohibited while only the playing of radios had been prohibited in Manhattan. Accordingly, the Arbitrator concluded that the grievance was not barred and was arbitrable.

On the merits, the Arbitrator ruled that the Activity violated the collective bargaining agreement by failing to notify the Union before prohibiting the playing of radios in work areas by employees at its Manhattan office. He directed that the playing of radios be permitted as it had been before the prohibition, pending compliance by the Activity with its duties under the collective bargaining agreement.

III. Positions of the Parties

The Agency contends that the award is deficient "on the grounds of election of remedy, res judicata and collateral estoppel." Agency's Exceptions at 1. The Agency argues that by finding that the grievance was not barred, the award is contrary to section 7116(d) of the Statute and violates the public policy of deferring to the administrative agency with primary jurisdiction in a matter. The Agency claims that the issue of the grievance had already been conclusively disposed of by the Authority. The Agency asserts that the Arbitrator should have deferred to the refusal to issue a complaint in the Newark office case and that the award is deficient because it permits relitigation of this matter.

The Union contends that the Agency's exceptions provide no basis for finding the award deficient.

IV. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to section 7116(d) of the Statute or the principles of election of remedies, res judicata, or collateral estoppel; violates a policy of deferring to the Authority; or improperly permits relitigation of the issue raised by the grievance.

In order for a grievance to be precluded under section 7116(d) by an earlier-filed unfair labor practice charge: (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 unfair labor practice; (2) such issue must have been earlier raised under the unfair labor practice procedures; and (3) the selection of the unfair labor practice procedures must have been in the discretion of the aggrieved party. For example, Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA 1001 (1985), reversed and remanded as to other matters sub nom. OEA v. FLRA, 824 F.2d 61 (D.C. Cir. 1987).

We reject the Agency's contention that the award is contrary to section 7116(d) because the issue underlying the ulp charge and the grievance was the same. The Arbitrator concluded that the issue involved in the Newark office case was not so similar to the issue presented in the grievance so as to bar the grievance. He specifically found a number of factors that differentiated the Newark office case from the case at issue here. In our view, the Arbitrator's determination constituted, in terms of section 7116(d), a determination that there were different factual predicates for the Newark office ulp charge and the Manhattan office grievance and that the issue raised as a ulp was not the same as the issue raised in the grievance submitted to him. In view of the Arbitrator's determination and the fact that the cases arose in separate geographical locations, we find that there is no basis for finding that the award is contrary to section 7116(d). For example, Patent and Trademark Office and Patent Office Professional Association, 26 FLRA 295, 297 (1987) (exception contending that the award was contrary to section 7116(d) was denied because the arbitrator found that the issues in the ulp charge and the grievance were not the same and the agency failed to establish otherwise).

The Agency's other arguments are also premised on its contention that the issue in the previous ulp case and the grievance are the same. Because the Arbitrator determined that the issues in the Newark office ulp case and the grievance were not the same, and the Agency has not established otherwise, we find that the Agency's exceptions provide no basis for finding that the award is contrary to the principles of election of r