44:1291(109)AR - - IAMASW and Navy, Naval Aviation Depot, Norfolk, Virginia - - 1992 FLRAdec AR - - v44 p1291



[ v44 p1291 ]
44:1291(109)AR
The decision of the Authority follows:


44 FLRA No. 109

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS

LODGE 39

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL AVIATION DEPOT

NORFOLK, VIRGINIA

(Agency)

0-AR-2194

DECISION

May 22, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Michael A. Murphy filed by the Union 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 Agency did not file an opposition to the Union's exceptions.

The Union filed a grievance contesting the Agency's failure to negotiate over a higher level of environmental differential pay (EDP) for bargaining unit employees. The Arbitrator found that the Union's grievance was not arbitrable under section 7116(d) of the Statute because the grievance raised the same issue that the Union had raised in an unfair labor practice (ULP) charge that it filed prior to filing the grievance. For the following reasons, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievance concerned the Union's claim that bargaining unit employees in electric plating shops were entitled to a higher rate of EDP for exposure to chemical fumes than the 4 percent differential that the Agency had paid for approximately 20 years. In 1988, following the installation of a new ventilation system, the Agency considered eliminating payment of the 4 percent differential but "decided in February of 1989 to rescind the scheduled termination of the [four percent EDP]." Award at 2. In February 1989, the Union filed a grievance requesting the Agency to pay EDP of 8 percent for a high degree hazard under Federal Personnel Manual (FPM) Supplement 532-1, Appendix J, instead of the 4 percent differential for a low degree hazard resulting from exposure to chemical fumes. The Agency rejected the grievance as premature and the Union did not proceed further with the grievance.

In March 1990, during negotiations over a new collective bargaining agreement, the Union requested a reevaluation of the levels of exposure to chemical fumes in the plating shops. The Agency informed the Union that surveys for 1988, 1989, and 1990 had revealed no air contamination in excess of the permissible exposure limits established by the Occupational Safety and Health Administration. The Agency further informed the Union that there was no basis for payment of any differential and an Agency official "demanded a showing as to why the [4 percent EDP] should not be terminated immediately." Award at 3-4. The Union responded to the Agency official "that the issue of [8 percent EDP] vis-a-vis [4 percent EDP] was currently under review by the Federal Service Impasses Panel [in connection with the new agreement,] which in the judgment of the Union made further comment inappropriate." Id. at 4. Several months later, in a memo to the Union dated September 18, 1990, the Agency noted that the negotiators of the new collective bargaining agreement had agreed that the 4 percent differential would be continued. However, the Agency refused to negotiate on the Union's request to establish a new 8 percent EDP category.

On August 31, 1990, the Union filed a ULP charge alleging that the Agency had failed to negotiate over the establishment of an 8 percent EDP category as required under Article XV, Section 4(b) of the parties' agreement.(1) In the ULP charge the Union claimed:

"On or about 31 August 1990, the Agency, by its Agents . . . refused to negotiate with the Union over the proposed new hazard or environmental Differential Pay Local Pay Category for Poisons (toxic chemicals)--high degree hazard, for Unit employees who are working with or in close proximity to poisons (toxic chemicals[])."

Id. at 5 (quoting ULP charge; emphasis in award deleted). The Arbitrator noted that "[a]fter a discussion with an Agent at [the Authority] who advised that the matter could more appropriately be handled by the Grievance Procedure as a Contract violation, the Unfair Labor Practice [c]harge was withdrawn on November 30, 1990 without any action having been taken by the [Authority]." Id. at 6.

On October 5, 1990, the Union filed a grievance alleging the following:

"The Commanding Officer of this activity is in direct violation of [the collective bargaining agreement] when on or about 18 September 1990 by means of Ltr. to the Chairman coded 12711.1 NADEP-09111, 18 Sept. 1990 he refused to negotiate the Establishment of a new category [of EDP]."

Id. (quoting grievance; emphasis in award deleted).

The grievance was not resolved and was submitted to arbitration. The Arbitrator identified the following issues:

1. Whether the grievance is in fact arbitrable in light of 5 USC 7116(d)[.]

2. Whether the Employer violated Article XV of the Collective Bargaining Agreement. If so, what shall the remedy be?

Id. (2)

The Arbitrator first addressed the arbitrability issue and the Agency's contention that the grievance was barred by the earlier-filed ULP charge. The Arbitrator determined that he did not have jurisdiction over the grievance under section 7116(d) of the Statute. He noted that "[t]he grievance appears to track fairly closely the Unfair Labor Practice [charge] filed with [the Authority]." Id. The Arbitrator also noted that the Union "does not contest the fact that the grievance filed in the instant case addresses the same subject matter as the Unfair Labor Practice." Id. at 11. He found that the subject matter of the grievance and the subject matter of the ULP charge were "virtually identical" in that in each action the Union alleged that the Agency refused to negotiate as required under Article XV, Section 4(b) of the parties' agreement over the establishment of a new category of 8 percent EDP for high risk hazard from exposure to toxic chemicals. Id. at 16. He also found that there was "no question" that the grievance was filed subsequent to the filing of the ULP charge and there was "no disagreement that the ULP was withdrawn effective November 30, 1990 without any action having been taken as to the merits of the charge." Id. at 15-16. The Arbitrator noted the Union's claim that because the ULP charge was withdrawn before any action was taken on the merits, the Union "is not getting two bites at the apple and should not be barred from pursuing this grievance." Id. at 11.

Relying on Authority precedent concerning the application of section 7116(d) of the Statute as a jurisdictional bar, the Arbitrator ruled that: (1) the Agency could not and did not waive its right to object to the Arbitrator's jurisdiction by failing to raise section 7116(d) as a bar prior to submission of the grievance to arbitration; and (2) the issue raised in the grievance was raised as a ULP for purposes of section 7116(d) when the ULP charge was filed, regardless of the fact that the charge was withdrawn before it was adjudicated on the merits.

The Arbitrator concluded that all of the elements required under section 7116(d) of the Statute for the ULP charge to bar the arbitration of the grievance were present in this case. He ruled that the ULP charge and the grievance "raise[d] the same issue, namely, whether the [Agency] has failed to bargain over creating an 8% [EDP] category in violation of Article XV, Section 4(b) of the Agreement." Id. at 24. Further, the Arbitrator noted that although the Union chose to withdraw the ULP charge before the charge was resolved on the merits, there was no evidence that the Union could not have proceeded with the adjudication of the ULP charge. He noted that Authority precedent does not require that a matter that is raised as a ULP charge be adjudicated on the merits in order to create a bar to the arbitration of a grievance on the identical issue under section 7116(d) of the Statute. The Arbitrator determined that the Union had the option of filing either a ULP charge or a grievance and it had chosen to file the ULP charge before filing the grievance. Finally, the Arbitrator held that the jurisdictional bar of section 7116(d) was not waived by the Agency's failure to assert the bar prior to arbitration. Accordingly, the Arbitrator denied the grievance for lack of jurisdiction without addressing the merits of the grievance.

III. Union's Exceptions

In describing the background of the case, the Union points out that it had filed a grievance concerning EDP on February 2, 1989, but had withdrawn that grievance before going to arbitration in response to the Agency's assertion that the Union had failed to make an official request to negotiate over EDP. The Union states that following the Agency's denial of the Union's formal request to negotiate over EDP during 1989, the ULP charge and the grievance in this case were filed in 1990. The Union asserts that the ULP charge filed on August 31, 1990, concerned the Agency's failure to negotiate in violation of section 7116(a)(1), (5), and (8) of the Statute, whereas the grievance filed on October 5, 1990, concerned the Agency's violation of the EDP provisions of the parties' collective bargaining agreement and applicable Government-wide regulations, including FPM Supplement 532-1, Appendix J. The Union also states that it had withdrawn the ULP charge "upon the advice of the FLRA Field Agent[.]" Exceptions at 1.

The Union contends that the Arbitrator's award is deficient because it fails to draw its essence from the parties' collective bargaining agreement and "manifests a disregard" for the parties' agreement. Id. at 2. The Union states that "[w]hile the Award does not specifically set forth the issue in the grievance, that [issue] is clearly whether the employees working in the Plating Shop are entitled to an 8% differential under FPM [Supplement] 532-1[,] Appendix J." Id.

The Union argues that the ULP charge and the grievance of October 5, 1990, did not concern the same issue because the ULP charge was based on the Agency's failure to negotiate under the Statute and the grievance was based on the Agency's failure to pay appropriate EDP under FPM Supplement 532-1, Appendix J. The Union states that in the grievance, "[t]he subject of failure to negotiate as alleged in the ULP was not an issue." Id. at 3. Therefore, the Union argues that the ULP charge and the grievance of October 5, 1990, concerned "two separate and distinct issues." Id.

The Union maintains that the Arbitrator misapplied Authority precedent concerning when an issue is raised for purposes of section 7116(d) of the Statute. The Union asserts that the issue in this case was first raised in the grievance of February 2, 1989, and contends that the ULP charge was barred, not the grievance filed on October 5, 1990. The Union contends that the Arbitrator was obligated under the parties' collective bargaining agreement to require the Agency to comply with Government-wide regulations, such as the FPM, and that by erroneously ruling that the issues in the ULP charge and the later-filed grievance were the same, the Arbitrator was unfaithful to his obligation under the parties' agreement.

IV. Analysis and Conclusions

We find that the Arbitrator properly refused jurisdiction over the grievance in accordance with section 7116(d) of the Statute. We also conclude that the Union's exceptions do not establish that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement or is otherwise deficient. Therefore, we will deny the Union's exceptions.

Section 7116(d) of the Statute 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, all of the following conditions must be met: (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 Defense, Defense Logistics Agency, Defense Depot Memphis, Memphis, Tennessee and American Federation of Government Employees, Local 2501, 40 FLRA 334, 338 (1991).

The Arbitrator's award finding that the grievance filed on October 5, 1990, was barred by the ULP charge of August 31, 1990, is consistent with the above requirements of section 7116(d) of the Statute. The Arbitrator found that the issue in the grievance and the ULP charge was the same and there is no dispute that the ULP charge was filed prior to the filing of the grievance. "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." U.S. Department of Defense, Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, Local 2317, 37 FLRA 1268, 1272 (1990) (Marine Corps). The Arbitrator compared the statement of issue in the ULP charge with the issue framed in the grievance and found that the issues were the same. We agree with the Arbitrator that the issue in the ULP charge and the issue in the grievance are "virtually identical." Award at 24. Both issues derived from the same set of facts and both issues clearly concerned the Union's contention that the Agency failed to negotiate over a proposed new category of EDP at the rate of 8 percent to replace the existing 4 percent rate of EDP for exposure to toxic chemicals. Based on the plain wording of the ULP charge and the grievance as set forth in the Arbitrator's award, we reject the Union's contention that the grievance concerned the Agency's failure to pay EDP in accordance with applicable Government-wide regulations and that the grievance did not allege the same failure to negotiate that was alleged in the ULP charge.

Further, we conclude that the theories relied on by the Union in support of its contentions were the same in the ULP charge and in the grievance. The Union argued in both the ULP charge and in the grievance that the Agency had violated its obligation to negotiate over the Union's request for a higher rate of EDP. See Marine Corps, 37 FLRA at 1272-73 (theories advanced in support of ULP charge and grievance found to be the same when both theories alleged violation of collective bargaining agreement in reissuing a notice of proposed suspension). Compare Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 43 FLRA 318, 323-26 (1991) (Authority found that a ULP proceeding was not barred by earlier-filed grievances because the theory underlying the ULP was different from the theories underlying the grievances, although the ULP and the grievances arose from the same factual circumstances).

We find no merit in the Union's contention that the ULP charge could not be a bar to the Arbitrator's consideration of the grievance because the ULP charge was withdrawn and never adjudicated. The Authority has consistently held that an issue is "raised" within the meaning of section 7116(d) of the Statute at the time of the filing of a grievance or a ULP charge, even if the grievance or ULP charge is not adjudicated on the merits. For example, U.S. Department of Interior, Bureau of Indian Affairs, Chemawa Indian Boarding School and National Federation of Federal Employees, Local 241, 39 FLRA 1322, 1324 (1991). Therefore, for purposes of section 7116(d), the Union raised the issue of the Agency's failure to negotiate over a new higher rate of EDP when it filed the ULP charge, even though the charge was subsequently withdrawn. The Union's argument that it withdrew the ULP charge "upon the advice of the FLRA Field Agent" does not not alter the fact that the issue was raised under the ULP procedures. Exceptions at 1. Further, the Union has not contended, and it is not apparent from the record in the case, that the Union did not exercise its discretion when it filed the ULP charge before filing the grievance. Consequently, we find that the Arbitrator properly determined that the grievance was not arbitrable under section 7116(d) of the Statute.

We reject the Union's contention that because it had filed a grievance in February 1989, seeking a higher rate of EDP, the ULP charge was precluded under section 7116(d) of the Statute, thus making the grievance of October 5, 1990 arbitrable. According to the Arbitrator's award, the grievance that was filed in February 1989 asserted that "the plating operations warranted 8% or high degree of hazard [EDP] as opposed to the 4% or low degree hazard [EDP] the employees had been receiving." Award at 2. We find that the issue in the February 1989 grievance and the issue in the ULP charge were not the same. The February 1989 grievance concerned the substance of the Union's request for a higher rate of EDP and the ULP charge concerned the Union's allegation that the Agency failed to negotiate over a later request for a higher rate of EDP. Therefore, there is no basis for the Union's contention.

In finding that the Arbitrator properly determined that the grievance was not arbitrable under section 7116(d) of the Statute, we also find no basis to support the Union's claim that the award fails to draw its essence from the parties' collective bargaining agreement. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of the Treasury, United States Customs Service, Savannah, Georgia and National Treasury Employees Union, 43 FLRA 1355, 1357 (1992).

The Union has not demonstrated that the award is deficient under any of these tests. The Union has provided no basis on which to conclude that the Arbitrator's award is implausible, irrational, or unconnected to the wording of the parties' collective bargaining agreement. Rather, the Union is only disagreeing with the Arbitrator's findings and conclusions that the issues in the ULP and the grievance concerned the Agency's alleged failure to negotiate over a higher rate of EDP under Article XV, Section 4(b) of the parties' agreement and that the grievance was barred from arbitration under section 7116(d) of the Statute because of the ULP. Disagreement with an arbitrator's findings and conclusions provides no basis for finding an award deficient. For example, U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 37 FLRA 1218, 1224-25 (1990). Consequently, the Union has not established that the award fails to draw its essence from the collective bargaining agreement.

To the extent that the Union's exceptions can be construed as an allegation that the Arbitrator's award is contrary to a Government-wide regulation, such exceptions provide no basis for finding that the award in this case is deficient. The Union contends that its grievance concerned the Agency's failure to pay EDP of 8 percent to which employees were entitled under FPM Supplement 532-1, Appendix J, a Government-wide regulation. However, the Arbitrator determined only that the Union's grievance was not arbitrable under section 7116(d) of the Statute because the grievance concerned the same issue that had been raised in the ULP charge--failure to negotiate over the Union's request for higher EDP. The Arbitrator did not reach the substantive issue of entitlement to a higher rate of EDP because he determined that he was without jurisdiction. Therefore, it is not necessary to address the Union's exceptions with regard to whether the award is contrary to the FPM.

V. Decision

The Union's exceptions are denied.




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

1. Article XV, Section 4(b) of the collective bargaining agreement provides:

Establishing new categories -- Where new local hazards or work conditions arise after the date of this Agreement, or authorization to establish a new local pay categ