Association of Civilian Technicians, Show-Me Army Chapter (Union) and United States Department of the Army, Missouri National Guard, Jefferson City, Missouri (Agency)

[ v58 p154 ]

58 FLRA No. 32

ASSOCIATION OF CIVILIAN TECHNICIANS
SHOW-ME ARMY CHAPTER
(Union)

and

UNITED STATES DEPARTMENT OF THE ARMY
MISSOURI NATIONAL GUARD
JEFFERSON CITY, MISSOURI
(Agency)

0-AR-3524

_____

DECISION

October 21, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Richard John Miller filed by the Union under § 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 exception.

      As relevant here, the Arbitrator found that the grievance was not substantively arbitrable because it involved the same issue as a subsequently-filed unfair labor practice (ULP) charge. Accordingly, the Arbitrator dismissed the grievance.

      For the reasons that follow, we find that the award is contrary to §  7116(d) of the Statute, and we remand this matter to the parties for resubmission to the Arbitrator, absent settlement.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency violated law and the parties' agreement by reassigning an employee. Subsequently, the Union filed a ULP charge, which was dismissed.

      When the grievance was unresolved, it was submitted to arbitration. The Arbitrator framed the issue, in pertinent part, as follows: "Is the grievance both procedurally and substantively arbitrable?" Award at 2. The Arbitrator determined that the grievance was not substantively arbitrable because, under § 7116(d) of the Statute and the parties' agreement, the Union was precluded from filing a grievance and a ULP charge concerning the same issue. [n1]  In this connection, the Arbitrator found it "immaterial" that the grievance was filed prior to the ULP charge, and stated that "[w]hat is material is the fact that the ULP decision was decided before the commencement of this arbitration proceeding." Id. at 8. The Arbitrator stated that "[s]ince the FLRA has resolved [the issue in the grievance] in favor of the Agency, this grievance is moot." Id. at 7. The Arbitrator concluded that he had "no contractual or statutory jurisdiction to decide the merits of this case," and dismissed the grievance. Id. at 8.

III.     Positions of the Parties

A.     Union Exception

      The Union argues that the award is contrary to law. Specifically, the Union contends that § 7116(d) precludes grievances only when they are filed after a ULP charge has been filed, and the grievance was filed prior to the ULP. While acknowledging that the Arbitrator relied on the parties' agreement as well as § 7116(d), the Union asserts that the Arbitrator "deemed" the parties' pertinent contract language to have the same meaning as § 7116(d). Exception at 3. Finally, the Union contends that the grievance and the ULP involve different issues.

B.     Agency Opposition

      The Agency argues that the Arbitrator correctly found that the ULP and grievance involve the same issue. The Agency also argues that the Union's exception improperly attempts to challenge a procedural arbitrability determination, and "merely constitutes disagreement" with the Arbitrator's interpretation of the parties' agreement and his reasoning. Opposition at 6. [ v58 p155 ]

IV.     Analysis and Conclusion

      The Union argues that the award is contrary to law. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Section 7116(d) of the Statute provides that issues that are appropriate for resolution under a negotiated grievance procedure may, in the discretion of the aggrieved party, be raised under that procedure or as a ULP, but not under both procedures. See United States Dep't of Def., Def. Communicat's Agency, Def. Commerc'l Communicat's Office, Scott Air Force Base, Ill., 49 FLRA 1492, 1495-96 (1994). An issue is "raised" under § 7116(d) at the time of the filing of the grievance or an ULP charge even if the grievance or charge is not adjudicated on the merits. See id. at 1496. Thus, where a grievance is filed before a ULP charge, § 7116(d) does not bar resolution of the grievance, and an award finding the grievance barred is contrary to law. See United States Dep't of Interior, Bureau of Indian Affairs, Chemawa Indian Boarding Sch., 39 FLRA 1322, 1324 (1991) (Dep't of Interior).

      The Arbitrator found, and it is undisputed, that the grievance was filed prior to the ULP charge. Thus, the Arbitrator erred as a matter of law by finding that § 7116(d) barred the grievance.

      The fact that the Arbitrator relied on wording from the parties' agreement does not support a different conclusion. In this connection, the contract wording relied on by the Arbitrator is identical to § 7116(d) of the Statute in all relevant respects. [n2]  The Authority has applied statutory standards in assessing the application of contract provisions that mirror, or are intended to be interpreted in the same manner as, the Statute. See NFFE, Local 2010, 55 FLRA 533, 534 (1999); see, e.g., United States Dep't of Justice, Fed. Correctional Facility, El Reno, Ok, 51 FLRA 584, 589 n.5 (1995). The Authority has done so where one party asserted, and the other party did not dispute, that the contract provision reiterated the statutory provision. See NFFE, Local 2010, 55 FLRA at 534.

      Here, the Arbitrator did not discuss whether the parties intended the contract provision and § 7116(d) to be interpreted in the same manner. The Union argues, and the Agency does not dispute, that the provisions should be interpreted in the same manner. Applying the principles set forth above, we find that the contract provision should be interpreted in the same manner as § 7116(d), and thus, the award is deficient. [n3]  See NFFE, Local 2010, 55 FLRA at 534. Consistent with precedent, we remand this matter to the parties for resubmission to the Arbitrator for a decision on the merits, absent settlement. [n4]  See, e.g., AFGE, Local 987, 57 FLRA 551, 557 (2001).

V.     Decision

      The award is set aside, and this matter is remanded to the parties for resubmission to the Arbitrator, absent settlement, for a decision on the merits of the grievance.



Footnote # 1 for 58 FLRA No. 32 - Authority's Decision

   Section 7116(d) of the Statute provides:

Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues 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