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58 FLRA No. 74
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL 170, LOCAL 2128
(Union)
and
UNITED STATES
DEPARTMENT OF DEFENSE,
DEFENSE CONTRACT
MANAGEMENT AGENCY,
DISTRICT WEST
HURST, TEXAS
(Agency)
0-AR-3555
_____
DECISION
January 24, 2003
_____
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 William L. McKee 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. [n1]
The Arbitrator ruled that the grievance was not arbitrable. For the reasons set forth below, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exception.
II. Background and Arbitrator's Award
Several locals of AFGE Council 170, including AFGE Local 2128, filed grievances claiming that the Agency improperly classified all bargaining unit employees in grades 9-12 as exempt from coverage by the Fair Labor Standards Act (FLSA). Subsequently, the locals, including AFGE Local 2128, and the Agency entered into a settlement agreement that resolved all of the grievances except for an issue of the exempt status of a specified group of positions. This issue was to be addressed by another arbitrator.
After learning of the terms of the settlement agreement, employees in several of the locals making up Council 170 took various actions to attempt to amend or repudiate the settlement agreement. In this regard, a newly elected president of AFGE Local 2128 notified the Agency that he considered the settlement agreement "to be illegal, invalid, and non-binding." Award at 7. In addition, he notified the Agency that the Union had reinstated its original grievance and resubmitted to arbitration the issue of the coverage by the FLSA of certain unit positions.
In November 2000, the Agency filed an unfair labor practice (ULP) charge against the Union, and the FLRA regional director dismissed the charge.
In response to the Union's reinstatement of the grievance, the Agency moved in April 2002 to dismiss the request for arbitration, and the Arbitrator addressed the issue of whether the grievance was arbitrable. The Arbitrator explained that the Union's entire case "rest[ed] on its success in repudiating the 1999 Settlement Agreement." Id. He rejected the Union's claim that it had successfully repudiated the settlement agreement. In addition, he ruled that the negotiated grievance procedure was not the appropriate forum for the Union to raise problems with the manner of distribution agreed to by its elected representatives upon the recommendation of legal counsel. Accordingly, the Arbitrator ruled that the grievance was not arbitrable.
III. Positions of the Parties
A. Union's Exception
The Union contends that the award is deficient because it is contrary to § 7116(d) of the Statute. [n2] The Union maintains that in the unfair labor practice charge that the Agency filed in November 2000, the Agency raised the issue of the Union's repudiation of the settlement agreement. The Union asserts that consequently, the Arbitrator was precluded in the subsequent arbitration hearing in 2002 from addressing the validity of the repudiation of the settlement agreement. [ v58 p317 ]
B. Agency's Opposition
The Agency contends that the repudiation issue was properly before the Arbitrator.
IV. Analysis and Conclusions
The Union's exception challenges the award's consistency with law. Accordingly, we review the question of law raised by the exception and the award de novo. See, e.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995).
In order for a grievance to be barred from consideration under § 7116(d) by a ULP charge: (1) the issue that is the subject matter of the grievance must be the same as the issue that is the subject matter of the ULP; (2) such issue must have been earlier raised under the ULP procedures; and (3) the selection of the ULP procedures must have been in the discretion of the same party aggrieved in the grievance. See, e.g., United States Dep't of Health and Human Services, Indian Health Serv., Alaska Area Native Health Services, Anchorage, Alaska, 56 FLRA 535, 538 (2000).
The Union has not established that the grievance and the ULP charge were both filed in the discretion of the same aggrieved party. The Authority has recognized that § 7116(d) is an election-of-remedies provision and that its clear purpose and effect is to prevent relitigation of an issue in another forum after a selection of forum in which to raise the issue has been made by the aggrieved party. See, e.g., Fed. Bureau of Prisons, 18 FLRA 314, 316 (1985). In this case, the Union filed the grievance on behalf of unit employees, and the Agency filed on its own behalf the ULP charge on which the Union is relying to invoke § 7116(d). In these circumstances, § 7116(d) does not apply. See, e.g., AFGE Local 3475, 55 FLRA 417, 418-19 (1999) (in order for a ULP charge to bar a subsequent grievance, both the ULP charge and the grievance must have been filed in the discretion of the same aggrieved party). Accordingly, we deny the Union's exception.
V. Decision
The Union's exception is denied.
Footnote # 1 for 58 FLRA No. 74 - Authority's Decision
The Union filed an objection to the Agency's opposition. As the Union has not requested permission to file the objection under § 2429.26 of the Authority's Regulations, we do not consider it. See, e.g., AFGE Local 1770, 52 FLRA 1348, 1348 n.1 (1997).
Footnote # 2 for 58 FLRA No. 74 - Authority's Decision
Section 7116(d) provides, in relevant part, that "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 section, but not under both procedures."