American Federation of Government Employees, Local 3475 and U.S. Department of Housing and Urban Development

[ v55 p417 ]

55 FLRA No. 68

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3475
(Union)

and

U.S. DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
(Agency)

0-AR-3076

_____

DECISION

April 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision of Donald S. Wasserman for the Authority.

I.    Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Bernard Marcus 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 Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the grievances were barred by section 7116(d) of the Statute. For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II.    Background and Arbitrator's Award

      On September 13, 1996, Dorothy Pleasant, in her capacities both as a grievant and as president of the Union, filed three grievances and a notice of arbitration. [n1]  The notice raised issues regarding Pleasant's five-day suspension and "[c]ontinuing enforced verbal [absent without leave] AWOL suspension." Award at 5. The notice also protested "continuing disciplinary actions taken against . . . Pleasant" instituted by Agency managers. Id.

      As relevant here, Pleasant and the Union also filed an unfair labor practice (ULP) charge related to the five-day suspension and several ULP charges related to the Agency's action of placing Pleasant on AWOL status. All of the charges were dismissed by an Authority Regional Director based on the absence of evidence establishing that the actions had been taken in retaliation for Pleasant's involvement in activities protected by the Statute.

      The Arbitrator framed the issue to be decided as follows:

Are the three grievances filed together with the notice of arbitration lodged by the Union and the grievant on September 13, 1996 barred by statute (5 U.S.C.A. §7116(d)) because unfair labor practice charges covering the same matters were filed with, and considered by, the Federal Labor Relations Authority ("FLRA")?

Award at 2. [n2] 

      Examining the grievances concerning the five-day suspension, the Arbitrator determined that they were clearly barred by section 7116(d) of the Statute. Award at 8. In this respect, the Arbitrator noted that the Authority had "exhaustively treated the substantive issue regarding the propriety of the suspension. The charging parties' grievance presents no theories of violation not presented to FLRA in the ULP charge." Award at 9. The Arbitrator further stated that the D.C. Circuit's decision in American Federation of Government Employees, Local 1411 v. FLRA, 960 F.2d 176 (D.C. Cir. 1992) (AFGE Local 1411), was "dispositive of the issue." Award at 9. [n3] 

      Turning to the AWOL grievance, the Arbitrator found that this matter had been the subject of repeated [ v55 p418 ] ULP charges filed with the Authority. The Arbitrator found that the grievance was:

(1) initiated at the discretion of both the Local Union and Pleasant, the aggrieved party; (2) implicates the same facts as both prior and subsequent unfair labor practice charges; and (3) presents the same theory of violation under the same statute and the same provisions of the labor agreement presented in the prior unfair labor practice charges.

Id.

      In sum, the Arbitrator concluded that the grievances were barred by section 7116(d) of the Statute.

III.    Position of the Parties

A.    Union's Exceptions

      The Union argues that the award is deficient on two grounds. First, the Union contends that Pleasant and the Union are not the same aggrieved party under section 7116(d) of the Statute. The Union argues that Pleasant invoked the "Institutional right of the Union" in filing the ULP charges and that she invoked her right as an employee in filing the grievances. Exceptions at 2. Second, the Union argues that the theories of violation differ between the ULP charges and the grievances. In this respect, the Union claims the grievances concern contractual violations while the ULP charges deal with statutory violations. The Union also states that a decision of the U.S. Department of Labor (DOL) supports its claim that the theories of violation are different. According to the Union, DOL determined that Pleasant had an injury-related disability during the same time that she was placed on AWOL.

B.    Agency's Opposition

      The Agency contends the Union cannot plausibly claim that Pleasant, as the president of the Union, acted independently in filing ULP charges over the same issues that Pleasant, as employee/grievant, filed in the arbitration. The Agency maintains that a comparison of the ULP charges, which were presented to the Arbitrator, and the grievances in this case shows that the factual circumstances are the same and the legal theories presented are substantially similar. The Agency also states that the DOL decision is irrelevant since it does not address whether the grievances are barred by section 7116(d) of the Statute.

IV.    Analysis and Conclusions

      An exception alleging that an award is contrary to law is reviewed by the Authority de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. U.S. Department of the Treasury, U.S. Customs Service, Portland, Oregon and National Treasury Employees Union, Chapter 156, 54 FLRA 764, 769-70 (1998) (NTEU, Chapter 156) (citing National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998)). In making that assessment, the Authority de