37:1268(107)AR - - DOD, Marine Corps Logistics Base, Albany, GA and AFGE Local 2317 - - 1990 FLRAdec AR - - v37 p1268



[ v37 p1268 ]
37:1268(107)AR
The decision of the Authority follows:


37 FLRA No. 107

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

MARINE CORPS LOGISTICS BASE

ALBANY, GEORGIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2317

(Union)

0-AR-1901

DECISION

October 29, 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 Roberta J. Bahakel filed by the Union pursuant to 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 to the Union's exceptions.

The Union filed a grievance over the 3-day suspension given to a unit employee. The Arbitrator determined that section 7116(d) of the Statute barred her from hearing the grievance because the issues raised in the grievance were the subject of an earlier-filed unfair labor practice (ULP) charge. The Union contends that the grievance and the ULP charge involve different issues.

For the reasons stated below, we conclude that section 7116(d) of the Statute prevents an arbitrator from considering whether the Agency was barred from reissuing the grievant's notice of suspension but does not prevent an arbitrator from considering the remainder of the grievance.

II. Background and Arbitrator's Award

The dispute in this case arose after the Agency suspended the grievant for 3 days. The Union filed a ULP charge on August 1, 1989 and an amended charge on September 7, 1989, alleging that the Agency violated section 7116(a)(1), (5), (7), and (8) of the Statute based on the following sequence of events:

(1) On July 7, 1989, the Agency proposed to suspend the grievant for 3 days for "Disobedience To Constituted Authority."

(2) On July 28, 1989, the Agency cancelled that proposed suspension.

(3) On July 31, 1989, the Agency reissued a notification of contemplated suspension for the same offense that was the basis of the previously cancelled proposed suspension.

(4) On August 4, 1989, the Agency issued a decision imposing the 3-day suspension on the grievant based on its July 31 notice.

The Union filed a grievance on August 21, 1989, challenging the grievant's 3-day suspension. The Union argued that the suspension was not for just cause and that the Agency violated the parties' collective bargaining agreement "when the first proposed suspension was cancelled without reason and reissued." Exceptions, Attachment 1. The grievance was subsequently submitted to arbitration.

Before ruling on the merits of the case, the Arbitrator first considered the issue of arbitrability. The Agency contended that the Arbitrator did not have jurisdiction to hear the case "because an unfair labor practice charge was filed by the Union which covers the same subject matter and issues as the grievance." Award at 2. The Union contended that "the unfair labor practice charge and the grievance address separate issues and therefore can be processed independently of one another." Id.

The Arbitrator determined that "the subject matter and issues raised in [the grievance] include some of the same subject matter and issues raised in the unfair labor practice charge." Id. at 3. The Arbitrator stated that under section 7116(d) of the Statute "the grievant may raise these issues under the grievance procedure or as an unfair labor practice [charge], but not both."(*) Id. She ruled that because the ULP charge was filed before the grievance, "the grievance must be barred." Id. Accordingly, she found that she "ha[d] no jurisdiction to hear this matter" and dismissed the grievance. Id.

III. Positions of the Parties

A. Union's Exceptions

The Union takes issue with the Arbitrator's finding that "the subject matter and issues raised in the grievance include some of the [same] subject matter and issues raised in the unfair labor practice charge." Exceptions at 1 (attachment and page references omitted), quoting Award at 3. The Union asserts that "[t]he grievance must clearly and unambiguously set forth the same issue which is raised in the ULP charge in order for the principle for preclusion to apply." Id. The Union contends that the issue in the ULP charge "is in fact a separate issue from the issue in the grievance." Id. at 4. The Union asserts, therefore, that "the bar provided at 5 U.S.C. 7116(d) . . . is not applicable." Id. at 2.

Specifically, the Union contends that "[t]he Grievance/ Arbitration concerned only the discipline of the Grievant and its merits or non-merits," while the ULP charge "concerned [the Agency's] manipulations of the procedures in order to preserve the timeliness of their actions [relating to the grievant's proposed suspension]." Id. In support of this contention, the Union argues that "the remedy requested in the grievance only address[es] the 3-day suspension" and that it "did not concern anything in the ULP [charge]." Id. at 4. The Union further argues that "the [procedural] violation of the collective bargaining agreement [was mentioned in the grievance] only for background information and historical progression of events." Id.

Further, the Union contends that the Arbitrator based her finding that she had no jurisdiction to hear the grievance on "erroneous interpretation[s]" of Authority decisions. Id. at 3. The Union argues that Authority precedent "clearly shows that where there are different issues the mere filing of [a] ULP charge does not preclude the filing of a grievance over similar but different issues." Id. Accordingly, the Union requests that "the Arbitrator's award be reversed and the issue be found arbitrable." Id. at 5.

B. Agency's Opposition

The Agency contends that the Union's exceptions to the Arbitrator's conclusion that section 7116(d) barred the grievance are "based on [the Union's] disagreement with the [A]rbitrator's findings of fact and conclusions." Opposition at 5. The Agency argues that, as found by the Arbitrator, "the issues involved in the ULP charge and the grievance are . . . 'substantially' the same." Id. at 3. The Agency asserts that "both the grievance and the ULP involve not only the general issue of [the grievant's 3-day suspension], but both specifically address the cancellation and reissuance of the disciplinary notices relating to timeframe considerations imposed by the Master Labor Agreement." Id. The Agency also asserts that the aggrieved party in both actions was the Union acting "in a representative capacity in behalf of the grievant." Id. at 4-5.

Further, the Agency takes issue with the Union's assertion that it mentioned "the violation of the collective bargaining agreement, relating to the cancellation and subsequent reissuance of proposed suspensions . . . 'only for background information and historical progression of events.'" Id. at 3-4. The Agency argues that "the [U]nion intended to challenge the validity of the cancellation and reissuance of the proposed notices of suspension in their grievance." Id. at 4. Therefore, the Agency contends that "[t]his is the same issue that was raised in the previously filed ULP charge and, thus, under 5 U.S.C. § 7116(d), is precluded from consideration under the negotiated grievance and arbitration procedure." Id.

IV. Analysis and Conclusions

We conclude that section 7116(d) of the Statute prevents an arbitrator from considering that portion of the grievance alleging that the Agency was barred from reissuing the grievant's notice of suspension. We also conclude that section 7116(d) does not prevent an arbitrator from hearing the remainder of the grievance; that is, whether the Agency had just cause to suspend the grievant based on the theory that he may not have committed the acts alleged.

Section 7116(d) provides that issues which may be raised under a negotiated grievance procedure may, in the discretion of the aggrieved party, be raised under that procedure or as an unfair labor practice, but not under both procedures. 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. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II and American Federation of Government Employees, Local 1760, 36 FLRA 448, 451 (1990).

The parties do not dispute that the selection of the ULP procedures was in the grievant's discretion. Instead, the parties focus on whether the grievance over the 3-day suspension presents the same issue as the ULP charge. In determining whether the grievance and the ULP charge involve the same issue, the Authority will look at whether the ULP charge and the grievance arose from the same set of factual circumstances and whether the theories advanced in support of the ULP charge and the grievance are substantially similar. See U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 36 FLRA 441 (1990) (U.S. Department of Veterans Affairs); and Overseas Education Association v. FLRA, 824 F.2d 61, 72 (D.C. Cir. 1987), reversing and remanding sub nom. Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA 1001 (1985), decision on remand, 29 FLRA 1225 (1987).

Both the ULP charge and the grievance arise out of the Agency's suspension of the grievant. The theory advanced in the ULP charge was that the Agency violated the parties' collective bargaining agreement when it: (1) reissued a notification of contemplated suspension after the time limit provided in the parties' agreement had lapsed, and (2) suspended the grievant pursuant to that subsequent timeframe. Paragraph 2 of the grievance alleges that the Agency violated the parties' agreement "when the first proposed suspension was cancelled without reason and reissued." Exceptions, Attachment 1. In our view, the theory advanced in support of the ULP charge and the grievance with respect to the reissuance of the notice is the same.

We reject the Union's contention that the issue of whether the Agency committed an unfair labor practice when it reissued the notice of suspension is different from an issue raised by the grievance. We also reject the Union's argument that section 7116(d) does not bar the grievance because the alleged procedural violation of the parties' agreement was mentioned in paragraph 2 of the grievance only as "background information and historical progression of events." Exceptions at 4. As noted above, both the ULP charge and the grievance arise out of the same set of facts and allege that the procedures that the Agency followed in subsequently suspending the grievant were contrary to the parties' agreement. The argument in both forums is that the later notice of suspension was untimely and should not have been issued. Thus, with respect to whether the Agency was barred from reissuing the notice of the suspension, the ULP charge and paragraph 2 of the grievance present the same issue. See U.S. Department of Veterans Affairs, 36 FLRA at 446 ("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"). Accordingly, we find that the Arbitrator correctly applied section 7116(d) in determining that some of the issues in the ULP charge and the grievance were the same.

We also find that the Arbitrator correctly applied section 7116(d) in determining that the issue of whether the Agency was barred from reissuing the notice of the suspension 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 a grievance or an unfair labor practice charge is filed even if the grievance or charge is not adjudicated on the merits. See, for example, Federal Bureau of Prisons and American Federation of Government Employees, Local 3690, 18 FLRA 314, 314 n.1, 315 (1985); Headquarters, Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, Local 2429, 17 FLRA 969, 970-71 (1985) (where the Authority found that the earlier-filed ULP charges barred grievances on the same issues despite the fact that the ULP charges were not adjudicated on the merits). The parties in this case do not dispute that the ULP charge was filed before the grievance. The Authority's records indicate that the unfair labor practice charge in this case (docketed as case number 4-CA-90743) was withdrawn by the Union on November 15, 1989. Although the ULP charge was not heard on the merits, the issue of whether the Agency was barred from reissuing the notice of the suspension was raised within the meaning of section 7116(d) at the time it was filed. See U.S. Department of Veterans Affairs, 36 FLRA at 446-47. Having found that a ULP charge was previously filed by the same party on the same issue, we conclude that section 7116(d) bars the grievance over whether the Agency was barred from reissuing the notice of the grievant's suspension.

In addition to the propriety of reissuing the notice of the suspension, the grievance raised an issue of whether the Agency had just cause to suspend the grievant. We conclude that the Arbitrator's determination that section 7116(d) barred her from hearing whether the Agency had just cause to suspend the grievant is contrary to law. Rather, we find that this is a separate issue from the issue raised in the ULP charge and, therefore, is not barred by section 7116(d).

The underlying purpose of section 7116(d) is to prevent relitigation of the same issue in a different forum. The ULP charge in this case raised only the issue of whether the Agency was barred from reissuing the notice of the grievant's suspension. The grievance raised not only that issue, but also the independent issue of whether the grievant committed the acts leading to the suspension. Paragraph 3 of the grievance states that, on the day of the alleged violation, the grievant "did the best that he could under the circumstances to accomplish the mission" of the Agency. Exceptions, Attachment 1. Paragraph 4 of the grievance states that the grievant "was never told to arbitrarily stay out of [the] work area [of the woman the grievant allegedly harassed], only to avoid personal contact with her and he has done so" and that the woman "was not harassed to the point that her performance was affected." Exceptions, Attachment 1.

Paragraphs 3 and 4 of the grievance address whether the grievant committed the acts alleged in the notification of contemplated suspension, that is, whether the grievant disobeyed authority when he entered the work area of the woman he allegedly harassed and, thus, whether the Agency had just cause to suspend the grievant. See Opposition, Attachment to the Union's Amended Charge. Accordingly, we conclude that paragraphs 3 and 4 of the grievance present an additional, different theory from that presented in the ULP charge with respect to the appropriateness of the suspension. The ULP charge alleged that the suspension violated the Statute because of the improper procedures used in implementing the suspension. In contrast, the grievance addresses the merits of the suspension and alleges that the suspension was not for just cause.

Where the theories advanced in support of the two actions differ in the manner they do here, the issues raised are deemed to be different. See United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 22 FLRA 161 (1986) (the Authority adopted the ALJ's decision that section 7116(d) did not bar the later-filed ULP charge over the agency's failure to bargain over the impact and implementation of a change in past practice when it charged an employee 2 hours of AWOL (absence without leave) for confusing his work shift because the ULP charge did not concern the merits of the AWOL); Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, 18 FLRA 831 (1985) (a later-filed grievance alleging that the grievant's discipline was not for just cause was not barred by section 7116(d) because the ULP charge did not concern the merits of the discipline); and Department of the Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 10 FLRA 88 (1982) (the Authority adopted the ALJ's decision that section 7116(d) did not bar a later-filed ULP charge alleging that the agency violated the Statute by giving the employee a letter of counseling because the earlier-filed grievance attacked the merits of the counseling letter and not whether the award of such a counseling letter violated the Statute).

While both the ULP charge and the grievance arise out of the grievant's suspension, the ULP charge does not raise the issue of whether the Agency had just cause to suspend him based on the theory that he may not have committed the acts alleged. Because this issue was not raised in the ULP charge, we find that the purpose of section 7116(d) would not be served by denying the grievant the opportunity to litigate this issue as a grievance. Accordingly, we find that section 7116(d) does not bar the grievance of this issue. Therefore, the Arbitrator's finding that section 7116(d) barred her from hearing this matter is contrary to law.

This is not a case where an arbitrator must determine whether the union followed the procedural requirements for filing a grievance under the parties' collective bargaining agreement before reaching the remainder of the grievance. Compare U.S. Department of the Army, Fort Monroe, Virginia and National Association of Government Employees, Local R4-11, 35 FLRA 1187 (1990) (the arbitrator found that the union's grievance was not arbitrable because it had not been timely filed under the provisions of the parties' collective bargaining agreement). Nothing in the record indicates that the Union has not met the procedural requirements for filing a grievance. Therefore, a determination on the issue raised by the Union in the ULP charge is not a pre-condition to hearing the issue raised by paragraphs 3 and 4 of the grievance. While the Union is barred from arguing the issue raised previously in the ULP charge, the Union is not barred from grieving the issue of whether the Agency had just cause to suspend the grievant based on the theory that he may not have committed the acts alleged.

Accordingly, we find that section 7116(d) of the Statute prevents an arbitrator from considering whether the Agency was barred from reissuing the notice of suspension, but does not prevent an arbitrator from considering the remainder of the grievance. Therefore, we deny the Union's exceptions in part and set aside and remand the award, in part, to the parties to request that an arbitrator mutually agreed to by the parties hear the issue of whether the Agency had just cause to suspend the grievant based on the theory that he may not have committed the acts alleged. The arbitrator may not consider the issue of whether the Agency was barred from reissuing the notice of suspension.

V. Decision

The Union's exception to the Arbitrator's finding that section 7116(d) bars consideration of whether the Agency was barred from reissuing notice of the grievant's suspension is denied. The Arbitrator's finding that section 7116(d) barred consideration of t