United States, Department of Labor, Washington, D.C. (Agency) and American Federation of Government Employees, Local 12 (Union)
[ v59 p112 ]
59 FLRA No. 21
DEPARTMENT OF LABOR
OF GOVERNMENT EMPLOYEES
September 5, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7101 et seq., and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the grievance was grievable and arbitrable. The Arbitrator sustained in part and denied in part the grievance over the Agency's refusal to schedule certain cases for arbitration. For the reasons that follow, we deny the exceptions.
II. Background and Arbitrator's Award
Since 1973, the parties scheduled cases for arbitration on an ad hoc basis, that is, they were not necessarily scheduled for arbitration in the order invoked. The cases were scheduled according to which cases the Union was ready to bring to hearing and subject to the availability of representatives to present the case at arbitration.
The parties' 1992 agreement, in effect at all times pertinent here, required the parties to meet on a monthly basis to review all cases in which arbitration had been invoked, and to assign a hearing date for all pending cases. The agreement also required that all regular arbitration cases be heard within 90 days of invocation. See Article 44, Section 3. Although the parties tried to meet these provisions, arbitration scheduling continued to be on an ad hoc basis and backlogs continued to mount.
Beginning in April, 1998, the Agency contacted the Union to discuss ways to reduce the backlog and meet the time strictures imposed by the parties' agreement. The Union continued to request scheduling of specific cases on an ad hoc basis. After many letters and several meetings, the Union indicated that it wished to schedule nine cases for arbitration. The Agency refused to schedule the nine cases unless the Union agreed to schedule other cases in the backlog.
On February 22, 1999, the Union filed an unfair labor practice charge, alleging that by failing to cooperate in scheduling the nine grievances, the Agency had repudiated the parties' agreement. The regional director found that the Agency had not repudiated the agreement and declined to issue a complaint based on the charge.
The Union again attempted to schedule the nine cases for arbitration. The Agency again declined, taking the same position as in previous discussions. On October 21, 1999, the Union filed a grievance, alleging that the Agency violated Articles 33, 34, and 44 of the parties' agreement when it refused to cooperate in the scheduling of the nine grievances for arbitration. The grievance was not resolved and was submitted to arbitration.
B. Arbitrator's Award
The parties did not agree on a formulation of the issues for arbitration and the Arbitrator framed the issues as:
1. Whether the grievance is barred by 5 U.S.C. §7116 (d) because the Union had previously filed an unfair labor practice ("ULP") charge against the Agency involving the same factual and legal predicates.
2. If it is arbitrable, did the [Agency] violate the Agreement when it refused to schedule nine grievances for arbitration unless the Union agreed to schedule other hearings? If so, what shall the remedy be?
Award at 2. [ v59 p113 ]
The Arbitrator concluded that the determination of whether a grievance was barred by an earlier-filed ULP required examining whether the grievance involved the same "issues," that is, whether the grievance arose out of the same set of factual circumstances as the ULP and whether the theory advanced in support of the grievance and the ULP were substantially similar. Only if both tests were met would a subsequent cause of action be barred by the former one.
According to the Arbitrator, the dismissal of the ULP disposed of, at most, the Agency's conduct up until the time of the filing of the ULP; it could not insulate the Agency from challenges to post-disposition conduct. Moreover, the Arbitrator found that the issues in dispute in the grievance centered on the status of the past practice in effect between the parties. The Arbitrator determined that that factual issue was not raised in the ULP and, because no evidentiary hearing was held by the Authority, the factual issues were not resolved by the Authority. See Award at 16.
The Arbitrator also found that the legal theory advanced in the ULP was not the same as raised in the grievance. See id. The Arbitrator determined that, in the unfair labor practice, the issue was whether the Agency's actions amounted to a repudiation of the parties' agreement, constituting a breach of §§ 7116 and 7121 of the Statute. According to the Arbitrator, the case before him concerned whether the Agency's conduct violated the parties' agreement and past practice, based on a preponderance of the evidence. The Arbitrator concluded that the record indicated that the ULP did not consider the legal theory of the past practice in effect between the parties. See id. at 17.
The Arbitrator determined that because the ULP did not answer the question raised in the grievance, the test to be applied in the actions differed, and different factual and legal bases supported the grievance. Thus, the Arbitrator found that the legal issues were not the same and, as a result, the grievance was not barred by § 7116.
Turning to the merits of the grievance, the Arbitrator found that the parties conceded that not all cases in which arbitration had been invoked were scheduled for arbitration. The Arbitrator also noted that there was a question of whether the parties were capable, within their current resources, of complying with the agreement. The Arbitrator found that the Union established that a past practice existed which was long-standing, consistent, and appeared to have been accepted by the parties. The Arbitrator also found that the parties' agreement specifically recognized the continuation of prior practices. The Arbitrator determined that the evidence established that, in recent history, the parties had not scheduled arbitration hearings in accordance with agreement time frames. The Arbitrator concluded that the Agency's insistence on scheduling cases strictly according to the agreement contravened the long-standing practice.
On the merits, the Arbitrator sustained the grievance in part and denied it in part. The Arbitrator found that the Union improperly insisted on the right to unilaterally schedule grievances without the Agency's agreement. [n2] The Arbitrator also found that the Agency violated the parties' past practice by refusing to schedule any new cases until all cases already pending were scheduled and by insisting on scheduling cases in the order in which arbitration was invoked.
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the determinative factor in applying § 7116(d) is the election of either the statutory ULP appeals process or the grievance procedure and not the subsequent handling or action by the Authority or an arbitrator.
The Agency argues that the Arbitrator's finding that actions subsequent to the Authority declining to issue a ULP complaint constituted a separate violation which could be raised in the grievance, is contrary to the Statute. According to the Agency, that would lead to continuous litigation, and such an argument is contrary to § 7116(d) of the Statute. The Agency maintains that the Union's attempts to schedule the nine grievances constitute the same factual predicate.
The Agency argues that the Arbitrator erred as a matter of law by improperly establishing as a criterion in applying the § 7116(d) bar the absence of an evidentiary hearing in the ULP.
According to the Agency, the issue of whether an agency repudiates an agreement on a given issue in a ULP charge and whether an agency violates the parties' agreement on the same issue in a grievance involves a substantially similar legal theory. The Agency argues that the Arbitrator erred in concluding that the standards of evidence applied in the ULP and grievance forums constituted different legal theories. [ v59 p114 ]
The Agency also argues that the Arbitrator erred in finding that the issue of "past practice" constituted a new and different issue in the grievance that was not present in the ULP. According to the Agency, the past practice issue is not a substantially different theory but "is simply an argument which was incumbent upon the Union to make in whichever forum it elected" under § 7116(d). See Exceptions at 8.
B. Union's Opposition
According to the Union, the Arbitrator correctly determined that the Agency's acts subsequent to the Authority's dismissal of the ULP constitute new issues which were not covered by the disposition of the ULP. The Union asserts that the Arbitrator's determination is consistent with applicable Authority case law which holds that circumstances that occurred after the union's ULP could not have been part of the factual underpinnings of the ULP charge and were not precluded from being raised through grievance arbitration. The Union relies on Equal Employment Opportunity Comm'n, 53 FLRA 465, 472-73 (1997) (EEOC).
The Union contends that the Arbitrator properly concluded that the legal theories in the ULP and the grievance were not the same. According to the Union, the Arbitrator found that the Authority looked at whether the Agency's actions were a "`clear and persistent'" breach of the parties' agreement rising to the level of repudiation. Opposition at 4, quoting Award at 16. In the grievance, the Union asserts that the Arbitrator examined whether the Agency violated the parties' agreement and past practice based on a preponderance of the evidence. The Union asserts that the Arbitrator looked at the legal theories as well as the standards of evidence associated with each.
The Union also challenges the Agency's argument that the Arbitrator erred in basing his decision on the fact that the ULP was not resolved after a full evidentiary hearing. According to the Union, that was not the basis for his conclusion that the issues in dispute in the grievance are centered on the status of the past practice in effect between the parties. The Union notes that the Arbitrator also held that the test the Authority applied to the ULP was not the same as is applicable in grievance arbitration to determine whether an agency's actions violated the parties' agreement.
IV. Analysis and Conclusions
The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. [n3]
The Authority's implementing Statute does not permit parties to litigate the same issue under both grievance/arbitration procedures and as an unfair labor practice. Thus, under § 7116(d) of the Statute, issues which can be raised under a grievance procedure may be raised under the grievance procedure or as an unfair labor practice, but not under both procedures. [n4] This policy was established to prevent needless duplicative and repetitive litigation.
Whether a grievance is barred by an earlier-filed ULP, or vice versa, requires examining whether the grievance involves the same "issues," that is, whether the grievance arose out of the same factual predicate as the ULP and whether the legal theory advanced in support of the grievance and the ULP are substantially similar. When both tests are met, § 7116(d) bars the subsequent action. See OLAM Southwest Air Def. Sector (TAC), Point Arena Air Force Station, Point Arena, Cal., 51 FLRA 797, 801-02 (1996) (Point Arena AFS), and cases cited therein.
In the present case, the factual circumstances presented in both the ULP and the grievance are the same. The facts underlying the ULP charge were that the Agency refused to cooperate in the scheduling of nine grievances for arbitration: the facts underlying the grievance were that the Agency continued to refuse to [ v59 p115 ] schedule the same grievances for hearing. In both instances, the scheduling request and the Agency's denial thereof were the same. Under these circumstances, we conclude that both the ULP and the grievance involved the same factual issues for purposes of § 7116(d). The Arbitrator's conclusion to the contrary was in error.
The same may not be said for the legal issues underlying the ULP and the grievance, however. The legal theory of the ULP charge was that, by failing to cooperate in scheduling nine grievances for arbitration, the Agency had repudiated the parties' agreement in violation of § 7116(a)(1) and (5); the legal theory advanced in the grievance was that there was a violation of the parties' agreement and/or a past practice by failing to cooperate in scheduling the nine grievances for arbitration. The Arbitrator found that the unfair labor practice charge "did not involve the same factual and/or legal predicates" as are presented in the grievance. See Award at 26. Therefore, according to the Arbitrator, different issues were being litigated in the previously filed unfair labor practice case. Further, he found that the differences between the issues litigated in the respective cases were sufficient to preclude a finding that § 7116(d) barred the grievance.
The Authority has held that a ULP charge alleging a statutory violation does not bar, under § 7116(d), a subsequent grievance alleging a contract violation. For example, the Authority has found that, under § 7116(d), a ULP charge alleging a violation of the statutory duty to bargain does not bar a subsequent grievance alleging a violation of a contractual duty to bargain. See Ass'n of Civilian Technicians, 55 FLRA 474 (1999) (ACT). This is consistent with other established precedent holding that ULP charges alleging violations of the Statute and grievances alleging contract breaches are not substantially similar theories as required for § 7116(d) to apply. See, e.g., United States Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Coatesville, Pa., 57 FLRA 663, 666-67 (2002) (no bar where grievance alleged agency violated agreement when it changed performance appraisal system, and ULP alleged respondent violated § 7116(a)(1) and (5) by implementing policy on employee recognition and awards without providing union notice and opportunity to bargain); United States Dep't of Health & Human Services, Indian Health Serv., Alaska Area Native Health Services, Anchorage, Alaska, 56 FLRA 535, 538 (2000) (no bar where grievance alleged union representatives were entitled to official time under the agreement, and ULP alleged agency's failure to grant official time violated § 7116(a)(1), (5) and (8); Dep't of Def., United States Army Reserve Pers. Command, St. Louis, Mo., 55 FLRA 1309, 1313 (2000) (no bar where grievance alleged agency violated agreement by informing union it intended to censor electronic bulletin board, and ULP alleged respondent's removal of postings from the bulletin board violated § 7116(a)(1)); United States Dep't of Hous. & Urban Dev., Denver, Colo., 53 FLRA 1301, 1316-18 (1998) (no bar where grievance alleged agency lacked just cause, under agreement, to suspend grievant, and ULP alleged supervisor's instructions to employee constituted unlawful unilateral changes in conditions of employment under Statute); EEOC, 53 FLRA at 472-73 (no bar where ULP charge alleged that agency's failure to participate in process of selecting arbitrators violated Statute by depriving unit employee of effective grievance procedure, and grievance alleged that the agency's failure permitted union to select arbitrator unilaterally); United States Dep't of Veterans Affairs, Med. Ctr., N. Chicago, Ill., 52 FLRA 387, 393 (1996) (no bar where ULP charge alleged agency's failure to give notice and opportunity to bargain, and grievance alleged denial of performance awards to grievants); AFGE, Nat'l Council of EEOC Locals No. 216, 49 FLRA 906, 914 (1994) (no bar where ULP charge alleged retaliation against grievant for her union activity, and grievance contended that there was not support for 14-day suspension of grievant); United States Dep't of Def., Def. Contract Audit Agency, Northeastern Region, Lexington, Mass., 47 FLRA 1314, 1320 (1993) (no bar where ULP charge alleged that agency's conduct constituted unlawful discrimination and interference within the meaning of § 7116(a) the Statute, and grievance involved question of whether parties' agreement provided official time to prepare and investigate ULP cases).
The foregoing demonstrates that the Authority has drawn a clear distinction between legal theories supporting allegations of statutory violations and allegations of contract violations, finding that the theories are not substantially similar for purposes of § 7116(d). A similar distinction has been drawn by the U.S. Court of Appeals for the District of Columbia Circuit. In this regard, in Overseas Educ. Ass'n v. FLRA, 824 F.2d 61 (D.C. Cir. 1987) (OEA), the court held that a ULP and grievance involved different issues because, as relevant here, "the grievance presented an alleged violation of the collective bargaining agreement, while the unfair labor practice charge concerned a statutory violation." Id. at 72. See also AFGE, AFL-CIO, Local 1411 v. FLRA, 960 F.2d 176, 178 (D.C. Cir. 1992) (AFGE, Local 1411) (court found grievance barred by earlier-filed ULP under § 7116(d) because, unlike OEA, the grievance and the ULP charge both alleged "the same statutory and contractual violations"). [ v59 p116 ]
None of these cases previously cited dealt with an unfair labor practice complaint alleging contract repudiation and a grievance alleging contract violation in the context of § 7116(d). The Authority has previously held, in this regard, that the contract repudiation and contract violation theories are substantially similar, for purposes of § 7116(d). See United States Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Newington, Conn., 36 FLRA 441 (1990) (VAMC Newington); Dep't of Health & Human Services, Soc. Sec. Admin., Balt., Md., 18 FLRA 855 (1985) (SSA Balt.); Dep't of the Air Force, Griffiss Air Force Base, Rome, N.Y., 12 FLRA 198 (1983) (Griffiss), rev'd and remanded as to other matters sub nom., AFGE Local 2612 v. FLRA, 739 F.2d 87 (2d Cir. 1984). We note, however, that in Dep't of Transp., Fed. Aviation Admin., Fort Worth, Tex., 55 FLRA 951, 953-54 (1999) (FAA), the Authority, without discussing this prior precedent but citing to, inter alia, AFGE, Local 1411, found that a ULP claim of repudiation was a different legal theory under § 7116(d) than a grievance claim of a violation of past practice.
The factors applied by the Authority to determine whether a repudiation has occurred are: (1) the nature and scope of the alleged breach of the agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement?). See Dep't of the Air Force, 375th Mission support Squadron, Scott Air Force Base, Ill., 51 FLRA 858 (1996). A grievance alleging a breach of the parties' contract does not necessitate an analysis of whether the violation was clear and patent or whether the provision breached goes to the heart of the parties' agreement. In order to establish a contract violation, a (mere) breach of a contract provision must be established. Thus, unlike other situations in which § 7116(d) has been applied, there is inherent similarity between the alleged statutory violation and the contract claim: a breach of a collective bargaining agreement is an element of both.
The similarity between the two theories ends with that one element, however. In this regard, while establishing a contract breach is necessary to establish repudiation, it is not sufficient to do so. Instead, to establish repudiation in violation of § 7116(1) and (5) of the Statute, it also must be established that the breach is of a specific type -- clear and patent. Further, to establish such repudiation, the contract provision breached must be of a specific type -- one that goes to the heart of the parties' collective bargaining agreement. Finding the one common element sufficient for purposes of concluding that the legal theories in a repudiation case and a contract breach case are substantially similar ignores the significant additional elements necessary to establish repudiation. It also ignores the substantial body of case law, set forth above, holding that theories supporting violations of the Statute and those supporting contract violations are not substantially similar. It should be emphasized, in this regard, that a finding of repudiation constitutes a finding that a respondent acted unlawfully in failing to meet its statutory obligation to bargain in good faith. See, e.g., Dep't of the Air Force, Headquarters 832d Combat Support Group, DPCE, Luke Air Force Base, Ariz., 24 FLRA 1021, 1038-39 (1986). A finding of a mere breach of a collective bargaining agreement, on the other hand, constitutes no such finding. Theories supporting the two claims are, in this respect, fundamentally different.
Neither VAMC Newington nor SSA Balt. explains why, for § 7116(d) purposes, a repudiation allegation presents a legal theory that is substantially similar to a contract breach allegation. Additionally, FAA does not explain the shift in handling repudiation and agreement violation situations. Further, although VAMC Newington cites Griffiss, to support this proposition, Griffiss also does not provide an explanation. In fact, the Authority reached no conclusion at all regarding § 7116(d) in Griffiss; the Authority merely noted the judge's findings regarding this issue, see id. 12 FLRA at 200 n.5, without indicating whether they were in dispute. Thus, although there are Authority holdings on this point, there is little, if any, reasoning supporting these holdings in any of them.
Finally, it is clear that the policy of § 7116(d) is to preclude "two bites at the apple" by requiring an election between ULP and grievance procedures for issues that can be raised under both procedures. As applied in this case, however, permitting resolution of the grievance-- by denying exceptions to the Arbitrator's award finding the grievance arbitrable--is not inconsistent with this policy. This is because the Union never obtained--and never sought--resolution of the "mere breach" issue in the ULP proceeding. Instead, the Union sought a ruling that the Agency violated its obligation to bargain in good faith under § 7116(a)(1) and (5) of the Statute by repudiating the parties' agreement. Having failed to obtain that result, litigating the issue of whether the Agency nevertheless violated the parties' agreement is completely consistent with the election requirements in § 7116(d). [n5]
Based on the foregoing, we conclude that the award in this case is not deficient as contrary to § 7116(d), and that FAA properly reflects how repudiation and contract violation § 7116(d) cases should be [ v59 p117 ] evaluated. Insofar as previous Authority precedent is inconsistent with this conclusion, it will no longer be followed.
The Agency's exceptions are denied.
Chairman Cabaniss' Concurring Opinion:
I write separately just to note that the impact of this decision and the precedent cited therein is actually fairly limited. Because contractual violation/enforcement claims are defined for § 7116(d) purposes as presenting different legal issues than statutory unfair labor practice claims, and especially because contractual violation/enforcement claims are not usually filed under our Statute's unfair labor practice procedures (such claims do not constitute an unfair labor practice in and of themselves), it will be the rare case where § 7116(d) actually bars any litigation. The primary effect of this rule is upon a party who attempts to file both an unfair labor practice and a grievance alleging a violation under § 7116(a) or (b).
Dissenting opinion of Member Armendariz
I write separately to express my view that § 7116(d) of the Statute bars the Union from raising the matter in this case as a grievance. Accordingly, the Arbitrator was without jurisdiction to resolve the merits of the grievance.
Section 7116(d) states, as relevant here, 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." For purposes of applying § 7116(d), the facts of this case are straightforward. The Union filed an unfair labor practice (ULP) charge alleging that the Agency violated the Statute by repudiating a provision of the parties' collective bargaining agreement when it did not schedule nine specific grievances for arbitration hearings. The Regional Director dismissed the charge. Subsequently, the Union filed a grievance alleging that the Agency violated the same provision of the parties' collective bargaining agreement by not scheduling the same nine specific grievances for arbitration hearings. In my view, § 7116(d) clearly precludes the Union from raising this issue as a grievance after it filed the ULP charge.
Under § 7116(d), the determination of whether a grievance is barred by an earlier-filed ULP charge, or whether a ULP charge is barred by an earlier-filed grievance, requires examining whether the later filing "arose from the same set of factual circumstances as the [earlier filing] and the theor[ies] advanced in support of the ULP charge and the grievance are substantially similar." United States Dep't of the Army, Army Finance and Accounting Center, Indianapolis, Indiana, 38 FLRA 1345, 1351 (1991), pet. for rev. denied, AFGE Local 1411 v. FLRA, 960 F.2d 176, 177-78 (D.C. Cir. 1992). Only if both requirements are satisfied is the later filing barred by the earlier filing.
The Arbitrator found that the factual circumstances as well as the legal theories were different in the ULP charge and in the grievance. For the reasons stated below, I disagree on both counts.
In concluding that the factual circumstances were different in the ULP charge and in the grievance, the Arbitrator stated:
[A]fter receiving the notice that the FLRA had declined to issue a [ULP] complaint . . . , the Union again sought to schedule the cases for arbitration; and the Agency again refused. The Union then grieved, seeking to require the Agency to schedule the same nine grievances which were the subject of the ULP.
The dismissal of the ULP disposed of, at most, management's conduct up until the time of the filing of the ULP; it cannot insulate the [Agency] from challenges to post-disposition conduct. Management's post-ULP denial constitutes a set of facts different in time from the factual predicate which was the subject of the ULP. Indeed those facts could not have been the basis for the ULP, since they post-date the disposition.
Award at 15.
This line of reasoning is without merit. It would permit a party to claim a different factual predicate by simply repeating at a later time the same claim that gave [ v59 p118 ] rise to the first filing. This cannot be what Congress envisioned in enacting this election of remedies provision. As the Agency correctly argues:
The mere fact that, after the Regional Director's dismissal, the Union initiated the precise same request in connection with the precise same nine arbitration cases and management responded with the precise same denial cannot in any reasonable or legal application constitute a `different factual predicate' [under § 7116(d)] to permit the [A]rbitrator to have jurisdiction.
Exceptions at 5. Accordingly, I would find that both the ULP charge and the grievance arose from the same set of factual circumstances--the Agency's refusal to schedule the same nine grievances for arbitration hearings.
Further, with respect to whether the legal theories advanced in support of the ULP charge and the grievance are substantially similar, I would find that they are. In both the ULP charge and the grievance, the basis of the Union's legal theory is that the Agency violated the same provision of the parties' contract when it did not schedule nine specific grievances for arbitration hearings. In this circumstance, the Authority has clearly held that § 7116(d) operates to bar the subsequent filing. See, e.g., United States Dep't of Veterans Affairs, VAMC Newington, Conn., 36 FLRA 441, 444-46 (1990) (VAMC Newington) (the Authority found that in concluding that a later filed grievance was barred by § 7116(d), the arbitrator correctly determined that the issues in the ULP charge and the grievance were the same because they both alleged that the agency's actions in reassigning an employee violated the parties' collective bargaining agreement); Dep't of the Air Force, Griffiss Air Force Base, Rome, N.Y., 12 FLRA 198, 208 (1983) (Griffiss AFB) (the Authority adopted an administrative law judge's conclusion that § 7116(d) barred a subsequently filed ULP charge where the charge and the grievance both alleged a violation of the same contract provision