38:1345(105)AR - - Army, Army Finance and Accounting Center, Indianapolis, IN and AFGE Local 1411 - - 1991 FLRAdec AR - - v38 p1345



[ v38 p1345 ]
38:1345(105)AR
The decision of the Authority follows:


38 FLRA No. 105

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

ARMY FINANCE AND ACCOUNTING CENTER

INDIANAPOLIS, INDIANA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1411

(Union)

0-AR-1763

DECISION

January 8, 1991

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator William H. Leahy filed by the Agency 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.(2)

The Arbitrator found that the grievant's 10-day suspension was not for just cause and revoked the suspension. The Arbitrator also ordered that the grievant be made whole for all loss of pay and for attorney fees in accordance with the Back Pay Act. For the following reasons, we conclude that the award is contrary to section 7116(d) of the Statute. Consequently, we will set aside the award.

II. Background and Arbitrator's Award

On December 8, 1987, the grievant, the Acting Executive Union Vice President, allegedly used offensive or abusive language to a supervisor when passing the supervisor in the hallway. Subsequently, the grievant received a letter of proposed suspension relating to that incident. On February 11, 1988, the Union filed an unfair labor practice (ULP) charge against the Agency. Part of the charge concerned the proposed suspension of the grievant.

The grievant received a 10-day suspension on February 22, 1988. The grievant served the suspension from February 23, 1988 to March 3, 1988. On February 25, 1988, the grievant filed grievances over the suspension and over a September 3, 1987 letter of warning that had been issued to the grievant relating to a separate incident. The parties exhausted the grievance procedure without resolving the dispute and the matter was submitted to arbitration.

Before the Arbitrator, the Union argued that both the suspension and the letter of reprimand were arbitrable and contended that the preponderance of the evidence showed that the discipline was without merit. The Union asserted that "the grievant was a Union official engaged in protected Union activity in regard to the charged incidents[.]" Arbitrator's Award at 3. The Union also challenged the credibility of the management witnesses who testified before the Arbitrator and argued that the discipline was not for just cause because of the following alleged mitigating circumstances: bias, anti-Union hostility, violation of the parties' agreement, and violation of the grievant's rights.

The Agency argued to the Arbitrator that the grievance was barred by section 7116(d) of the Statute because a ULP charge had been filed previously by the same party on the same issue.(3) The Agency contended that, even if the grievance were not barred, the preponderance of the evidence showed that the Agency acted correctly in suspending the grievant. The Agency also argued that the evidence did not show that the grievant was engaged in protected Union activity when she used abusive language. The Agency contended that it had shown that the grievant committed the charged offense, that a suspension was the correct discipline, and that "no mitigating circumstances such as bias, anti-union hostility, violation of the Agreement or the grievant's rights were present." Id. at 3.

The Arbitrator framed the issue as whether the grievance was arbitrable, and if so, was the Agency's 10-day suspension of the grievant on the charge of using offensive or abusive language to the supervisor on December 8, 1987, for just cause?

The Arbitrator found that the grievance over the 10-day suspension was not barred by section 7116(d) of the Statute. The Arbitrator stated that for section 7116(d) to bar the grievance, it must be clear that the ULP charge filed on February 11, 1988 raised the same issue as the grievance filed on February 25, 1988. The Arbitrator found that because the February 11, 1988 ULP charge addressed the issue of a proposed suspension, and the February 25, 1988 grievance concerned an actual suspension, "the issues are different and thus Section 7116(d) does not serve as a bar to the grievance." Id. at 5. The Arbitrator also found that the grievance concerning the September 3, 1987 letter of reprimand was barred as untimely filed.(4)

As to the merits of the grievance over the 10-day suspension, the Arbitrator found that the Agency had the burden of showing that the grievant was disciplined for just cause and that "the evidence presented to prove that [the grievant] committed the charged infraction does not meet the standard of the preponderance of evidence." Id. at 7. Accordingly, the Arbitrator concluded that the suspension was not for just cause and ordered that the suspension be revoked and the grievant "be made whole for all loss of pay and for attorney fees in accordance with [t]he Back Pay Act." Id.

III. Positions of the Parties

A. The Agency

The Agency excepts to the Arbitrator's finding that the grievance was arbitrable. The Agency asserts that section 7116(d) bars the processing of this grievance because a ULP charge had been filed on the same issue. The Agency challenges the Arbitrator's conclusion that the issues were different because the ULP charge was filed when the suspension was at the proposal stage, whereas the grievance was filed after the decision to suspend was issued.

In this regard, the Agency argues that in U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, Local 2724, 20 FLRA 743 (1985) (Immigration and Naturalization Service), the Authority found that section 7116(d) barred the processing of a grievance on a final disciplinary action where the union previously filed a ULP charge on the proposed disciplinary action. The Agency cites U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 564 (1986) as finding that "there is no difference between a proposal and the final issuance of an action." Agency's Exceptions at 3. The Agency further notes that section 7116(d) has been found to apply "when the choice of particular procedures has been made by the aggrieved party regardless of who is formally the filing party" and that the grievant, as a Union official, "was certainly aware of the filing of both the ULP and the grievance" and made "a deliberate election . . . to raise the issue of the suspension under both the ULP and the grievance procedures." Id.

In asserting that the grievance and the ULP in this case present the same issue, the Agency distinguishes Cornelius v. Nutt, 472 U.S. 648 (1985). According to the Agency, the union in that case "alleged institutional harm" rather than harm to the employees, whereas both matters in this case "claim that actions against the grievant are unfair and/or improper." Agency's Exceptions at 3.

The Agency also excepts to the Arbitrator's award of attorney fees in this case. The Agency argues that the award is contrary to law because it does not make the specific findings required by 5 U.S.C. º 5596 (the Back Pay Act) and 5 U.S.C. º 7701(g) and that, because the grievant was not a party to the arbitration, she "is not entitled to the grant of attorney fees." Id. at 5-7.

B. The Union

The Union argues that the Agency has not shown that the Arbitrator's conclusion that the grievance was arbitrable is contrary to law, rule, or regulation. The Union argues that section 7116(d) does not bar the grievance because the "ULP was filed by the Union to protect it's [sic] separate interest because the [grievant] was a Union Officer" and "to protect itself as an entity" because the mere threat of disciplinary action would have "a chilling effect on legitimate Union concerns such as: recruitment of members and securing willingness of employees to serve as stewards." Union's Opposition at 3, 5. The Union contends that, in this case, it is "clear from the charges in the ULP it was [the] Union interest sought to be protected." Id. at 7.

The Union also argues that the grievant had no control over the Union's decision to file a ULP charge and that the Agency has not demonstrated that the grievant exercised any discretion with regard to the filing of the ULP charge. The Union distinguishes Immigration and Naturalization Service by stating that: (1) the cases involve different disciplinary decisions; (2) the parties filing the grievance and the ULP charge in this case are different, while the parties in the cited case were the same; (3) the cited case did not involve a union filing a ULP charge to protect itself; and (4) the arbitrator in the cited case found that the issues were the same, while the Arbitrator in this case found that the issues were different. The Union also asserts that Cornelius v. Nutt "supports the Union case" and states that "[a] Union may suffer institutional harm." Union's Opposition at 7. The Union further states that "[n]o evidence or document has been offered to show any entity other than the Union filed the unfair labor practice charge claiming institutional harm." Id. at 9.

The Union argues that it was within the Arbitrator's authority to award attorney fees in accordance with the Back Pay Act and that the Arbitrator properly concluded that the Agency's action was "unjustified or unwarranted" under the Back Pay Act. Id. at 15. According to the Union, the Agency was notified that the grievant was going to seek attorney fees and that the Agency should have known that it could not support its case by a preponderance of the evidence. The Union states that because the grievant is the prevailing party and because fees are payable in the interest of justice, the award "meets the standards of the Back Pay Act on two of three standards in [5 U.S.C. º 7701.]" Id. However, the Union acknowledges that the award "does not address the third statutory standard," specifically, the reasonableness of the fees, and states that the "claim for attorney fees should be remanded to Arbitrator Leahy to set an attorney fee" in accordance with the relevant legal standards. Id.

IV. Analysis and Conclusions

We conclude that section 7116(d) of the Statute bars consideration of the grievance in this case and, therefore, we will set aside the award.

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).

We must first determine whether the grievance over the actual 10-day suspension presents the same issue as the ULP charge relating to the proposed suspension. We find that the same issue was raised in both procedures. Contrary to the Arbitrator, we do not believe that the fact that the suspension was proposed at the time the ULP charge was filed, but was definite when the grievance was filed, is dispositive. In determining whether the procedures involved the same issue, the Authority does not focus on whether the action was proposed or definite. Rather, the Authority looks at whether the ULP charge arose from the same set of factual circumstances as the grievance and the theory advanced in support of the ULP charge and the grievance are substantially similar.

In Federal Bureau of Prisons and American Federation of Government Employees, Local 3690, 18 FLRA 314 (1985) (Federal Bureau of Prisons), the earlier filed ULP charge alleged that the activity violated the Statute by proposing to discipline the grievant because the charges leading to the proposed discipline "were false and constituted a reprisal against the grievant for union activities," whereas the grievance alleged that "the decision to suspend the grievant was not warranted because it simply constituted harassment of the grievant for his union activities." Federal Bureau of Prisons, 18 FLRA at 315. The Authority found that the grievance raised the same issue as the earlier filed ULP charge, notwithstanding the fact that the ULP charge related to a proposed suspension and the grievance related to an actual suspension. The Authority concluded, therefore, that the grievance was barred by section 7116(d). See also Immigration and Naturalization Service.

In this case, the Arbitrator found, and both the Union and Agency state, that one of the allegations in the ULP charge involved the proposed suspension of the grievant for allegedly using abusive language toward a supervisor. See Arbitrator's Award at 2; Agency's Exceptions at 1; and Union's Opposition at 1-3. Therefore, it is undisputed that the ULP charge and the grievance arise out of the same incident leading to the proposed, and actual, suspension of the grievant. Accordingly, this case is distinguishable from 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), where the United States Court of Appeals for the District of Columbia Circuit upheld the arbitrator's finding that there were different factual predicates for the ULP charge and the grievance, and, therefore, section 7116(d) did not bar the processing of a later-filed grievance.

According to the Union, the ULP charge alleged, in part, that the Agency: (1) "[d]isciplined an employee concerning matters which are the proper undertaking of Union activity as a proximate result of the employee having filed complaint against the [A]gency"; (2) violated "5 USC 7102 rights of an employee to assist freely in the conduct of Union activity, without fear of penalty or reprisal for their assistance, and to be protected in the exercise of the right"; (3) interfered with, restrained, and coerced an employee acting to exercise rights; (4) "[c]reated conditions of employment which discriminate and show a hostile environment for Union membership and/or activity"; and (5) "[d]iscouraged membership in the Union by disciplinary action in a manner which constitutes discrimination against an employee while acting in an Official capacity as a Union Official causing a chilling effect upon Union membership activity." Union's Opposition, Exhibit A. Although the Union's Exhibit A specifically mentions only the reprimand, there is no dispute as to the Arbitrator's finding that the allegations in Exhibit A of the Union's Opposition also related to the proposed suspension of the grievant.

With respect to the grievance, the Union alleged that "the grievant was a Union official engaged in protected Union activity in regard to the charged incidents" and that "the charged offenses are without merit . . . and that there exists mitigating circumstances also such as bias, anti-Union hostility, violation of the Agreement and the grievant's rights." Arbitrator's Award at 3-4. In both the ULP charge and the grievance, the challenge is to the merits of the suspension and reprimand against the grievant. The ULP charge alleges, in part, that the suspension and reprimand violated the grievant's rights because they were imposed on an employee who was engaged in protected Union activity. The grievance alleges that the suspension and reprimand were not for just cause, but were due to the grievant's Union activities. Because the theory to support both challenges is that the grievant was disciplined because of Union activities, we find that the grievance raised the same issue as had been raised previously in the ULP charge. See Federal Bureau of Prisons, 18 FLRA at 315. Compare Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, 18 FLRA 831 (1985) (a subsequently-filed grievance alleging that the grievant's discipline was not for just cause was not barred by section 7116(d) because the ULP charge concerned interference with the grievant's right to investigate and not the merits of the discipline).

We reject the Union's argument that section 7116(d) does not bar the grievance because the ULP charge was filed to protect an institutional interest. While portions of the ULP charge appear to address the Union's institutional interest, it is clear that the ULP charge was not filed solely in the Union's institutional interest. As noted above, the ULP charge specifically alleges discrimination against an employee as well as interference with and a violation of the "5 USC 7102 rights of an employee" and, thus, addresses in part the grievant's rights as an individual. See Union's Opposition, Exhibit A. Compare Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.), 23 FLRA 475, 478-79 (1986) (section 7116(d) did not bar the ULP complaint alleging interference and discrimination because the earlier grievance filed by the union was an institutional grievance contesting the agency's interpretation of the negotiated grievance procedure).

We note the Union's statement that the Supreme Court's decision in Cornelius v. Nutt supports its assertion that "[a] [u]nion may suffer institutional harm." Union's Opposition at 7. Although the Court noted that section 7116(d) "does not preclude a union in its institutional capacity as an aggrieved party from filing an unfair labor practice charge to enforce its own independent rights merely because an employee has initiated an appeal or grievance procedure[,]" Cornelius v. Nutt, 472 U.S. at 665 n.20, because we have found that the Union in this case did not file the ULP charge solely to enforce its own independent rights, the statement in Cornelius v. Nutt does not apply.

We also conclude that the grievant was the aggrieved party in both actions. We reject the Union's argument that the aggrieved party in the ULP charge was the Union only. Although the Union attempts to distinguish the Authority's decision in Immigration and Naturalization Service, we find that that decision applies to this case. In Immigration and Naturalization Service, the Authority held that, under section 7116(d), the term "party" attaches when the choice of particular procedures has been made by the aggrieved party, regardless of who is formally the filing party. See Immigration and Naturalization Service, 20 FLRA at 745. Although the ULP charge was formally filed by the Union, it was drawn, in part, to allege specifically a violation of the grievant's rights and was filed soon after the Agency proposed to discipline the grievant. See Union's Opposition, Exhibit A. In these circumstances, we conclude that the grievant was the aggrieved party in both the ULP charge and the grievance with respect to the alleged actions taken against the grievant.

Finally, we find that the decision to file the ULP charge, insofar as it concerned the alleged actions taken against the employee, was made in the discretion of the aggrieved party within the meaning of section 7116(d) of the Statute. As the exclusive representative of bargaining unit employees, a union may file an unfair labor practice charge on a unit employee's behalf alleging harm to that employee. Where a union, in its representational capacity, files a ULP charge alleging harm to a unit employee, and there is no indication that the employee had attempted to preclude the union from filing on the employee's behalf, we will conclude that the ULP charge was filed on the employee's behalf and in the employee's discretion within the meaning of section 7116(d) of the Statute. See Immigration and Naturalization Service and Federal Bureau of Prisons.

As noted above, the ULP charge in this case was drawn, in part, to allege specifically a violation of the employee's rights and was filed soon after the Agency proposed to discipline her. The employee was the Acting Executive Union Vice President at the time that the ULP charge was filed. There is no indication that the Acting Executive Union Vice President attempted to preclude the Union from filing the ULP charge on her behalf. In these circumstances, we find that the ULP charge, insofar as it concerned the alleged actions taken against the employee, was filed by the Union on the Acting Executive Union Vice President's behalf and in her discretion within the meaning of section 7116(d) of the Statute.

Because a ULP charge was filed on the same issue in the discretion of the same aggrieved party, the later-filed grievance is barred by section 7116(d) of the Statute. Consequently, we conclude that the Arbitrator's finding that section 7116(d) did not bar the grievance in this case because the issues in the ULP charge and the grievance were different is contrary to law. Accordingly, we will set aside the Arbitrator's award.

In light of our determination that the award must be set aside because section 7116(d) bars the later-filed grievance in this case, we need not consider the other arguments made by the parties, including whether the award of attorney fees was proper under the Back Pay Act and 5 U.S.C. º 7701(g).

V. Decision

The award is set aside.

_____________________________________________________________

Opinion of Member Talkin, dissenting.

Contrary to the decision of the majority, I would remand the award to have the Arbitrator determine whether the Union's filing of the ULP charge was in fact "in the discretion of the aggrieved party."

The majority concludes that the decision to file the ULP charge, insofar as it concerned the alleged actions taken against the grievant, was made in the discretion of the grievant within the meaning of section 7116(d) of the Statute. They reach this conclusion notwithstanding claims that the grievant had no control over the Union's decision to file a ULP charge and that there is no showing that the grievant exercised any discretion with regard to the filing of the ULP charge. They base this conclusion on the Delphic pronouncement that where a union, in its representational capacity, files a ULP charge alleging harm to a unit employee, and there is no indication that the employee had attempted to preclude the union from filing the ULP on the employee's behalf, the Authority will conclude that the ULP charge was filed on the employee's behalf and in the employee's discretion within the meaning of section 7116(d).

This pronouncement tortures the plain meaning of the Statute and is not supported by the legislative history to the Statute. It creates an interpretation of the Statute from which I respectfully dissent.

The issue in this case is quite simple and straightforward and is at the core of our administration of the Statute: the proper interpretation and application of provisions of the Statute. It is a role that in many respects is well-defined. As the U.S. Supreme Court recognized long ago: "[T]he meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485 (1917). When the language of the Statute is plain, unambiguous, and uncontrolled by other parts of the Statute, we cannot give it a different meaning.

The plain language of the pertinent provision of section 7116(d) 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." The Statute plainly and unambiguously places with the aggrieved party the discretion to raise an issue as a ULP or as a grievance. The ordinary meaning of the term "discretion" in this context is the "power of decision"(1) or the "[p]ermission given to an individual to make decisions by his own judgment."(2) The majority decision is an unnatural reading of the Statute's plain language. Rather than recognizing and enforcing the aggrieved party's power of decision and judgment, the majority decision renders individuals who are aggrieved parties virtually powerless. Individual aggrieved parties have the power of decision under the majority's view only when they win the race to select their own forum against the exclusive representative, which is not aggrieved at all in these matters, or when they in some undefined manner "had attempted to preclude the union from filing" the ULP or the grievance on their behalf. In a practical sense, it is unrealistic, if not absurd, to believe that employees in these situations will have knowledge of their union's actions or deliberations. In reality, the majority's construction of the Statute places an enormous burden on individual employees to understand their new responsibilities so that they can vigilantly protect, in a yet undisclosed manner, their rights to choose a forum for the resolution of their individual disputes.

In cases such as this one, I believe that we are not free to ignore the clear language of the Statute and replace it with our own views as to how the selection of forums ought to be made.

That the majority has seriously erred is reinforced by examining the legislative history to section 7116(d). The legislative history clearly indicates that the intent of section 7116(d) was that "the aggrieved party may choose which form of proceeding he wishes to follow." H. Rep. No. 1403, 95th Cong., 2d Sess. 50 (1978). Thus, the purpose of this provision of section 7116(d) was to grant the aggrieved party freedom to choose. My colleagues properly find that the individual grievant is the aggrieved party in both proceedings, but regrettably give that aggrieved party neither freedom nor choice in this instance. By imposing these limitations on individual aggrieved parties, I believe that the majority has weakened the purpose and intent of section 7116(d).

Furthermore, the majority's interpretation of section 7116(d) is not supported by its citation to Immigration and Naturalization Service, 20 FLRA 743. Rather, in my view, Immigration and Naturalization Service supports a remand to the Arbitrator to decide the factual issue of whether the Union's filing followed the grievant's wishes and, therefore, was in the discretion of the grievant. Immigration and Naturalization Service was resolved on the basis of just such a specific factual finding by the arbitrator that "although the charge was formally filed by the Union, the filing was by election of the grievant." 20 FLRA at 744. Thus, unlike the decision in this case, Immigration and Naturalization Service recognized and enforced the freedom of choice granted the aggrieved party under section 7116(d) to elect ULP procedures by having the union file a charge on his behalf and at his election. Nonetheless, the majority suggests that Immigration and Naturalization Service supports a choice of forums by the union when that choice is merely on behalf of the aggrieved party, regardless of whether it was in fact at the express election of the aggrieved party.

The majority also cites Federal Bureau of Prisons, 18 FLRA 314. I agree that the result in Federal Bureau of Prisons supports the majority's decision, but note that Federal Bureau of Prisons reaches that result without any analysis. The only support offered in the decision is the irrelevant determination in Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA 1001 (1985), reversed on other grounds sub nom. Overseas Education Association v. FLRA, 824 F.2d 61 (D.C. Cir. 1987), that the preclusion of section 7116(d) applies when the choice of forums has been made by the aggrieved party regardless of who is formally the filing party. For the same reasons I am dissenting here, I would overrule Federal Bureau of Prisons.

In sum, whatever force there might be to the majority's interpretation of section 7116(d) based on theories about the role of the exclusive representative under the Statute, to me the short answer is that "Congress did not write the statute that way." United States v. Monsanto, 109 S. Ct. 2657, 2664 (1989) (quoting United States v. Naftalin, 441 U.S. 768, 773 (1979)). There may well be unforeseen problems presented by my interpretation of the Statute. However, I do not believe that the effect of any such problems on the administration of the Statute is so certain, or so substantial, that the Authority is justified in holding that Congress did not mean what it plainly said in section 7116(d). If the majority's denial of the freedom of choice and the power of decision to the aggrieved party bore the legitimacy of having been prescribed by Congress, it would, insofar as we are permitted to inquire into such things, be just. But it has not been, and it is not. Therefore, I dissent.




AUTHORITY FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Talkin's dissenting opinion is set forth after the majority opinion.

2. Following submission of its opposition, the Union filed additional materials and requests regarding the processing of this case. In view of our disposition of this case, it is unnecessary to address those supplemental submissions.

3. Section 7116(d) of the Statute provides in relevant part:

[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.

4. The Union filed exceptions to the Arbitrator's determination that the grievance concerning the reprimand was barred because it was untimely filed. Those exceptions were dismissed as untimely filed in U.S. Departme