American Federation of Government Employees, Council 236 Region 2, (Union) and United States, General Services Administration, Northeast, and Caribbean Region (Agency)

[ v61 p1 ]

61 FLRA No. 1

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 236, REGION 2
(Union)

and

UNITED STATES
GENERAL SERVICES
ADMINISTRATION, NORTHEAST
AND CARIBBEAN REGION
(Agency)

0-AR-3884

_____

DECISION

June 2, 2005

_____

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 exceptions to an award of Arbitrator Eleanor E. Glanstein 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 exceptions.

      The Arbitrator found that the Union's grievance was not arbitrable because it presented the same issue as the Union's earlier-filed unfair labor practice (ULP) charge, and was therefore barred by § 7116(d) of the Statute.

      For the following reasons, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      The Union filed a ULP charge against the Agency alleging that the Agency violated § 7116(a)(1), (2), (5) and (8) of the Statute by coercing employees, discouraging membership, refusing to consult in good faith, and otherwise failing to comply with the Statute, when it released a memo from the Agency's New York Assistant Regional Administrator (ARA) to unit employees regarding the parties' negotiation sessions concerning incentive awards. Exceptions, Attachment at 11. According to the charge, the ARA's memo had deleterious effects on the Union's relationship with unit employees and its ability to bargain and represent the interests of unit employees in negotiations concerning the incentive awards. [n1] 

      Subsequently, the Union filed a grievance against the Agency. Id., Attach. at 8-10 (Grievance). The grievance alleged that management distributed incentive awards without a signed MOU in "violat[ion of] the Labor Statute concerning negotiating awards and annual performance." Grievance at 2. The grievance also alleged that management was not abiding by prior MOUs that provided for an even distribution of the lump sum available for awards to employees and managers. The grievance further alleged that management "vacillated" on whether it would bargain with the Union and threatened to spend the award money if the Union failed to sign "a perpetual MOU." Id. Lastly, the grievance alleged that "[m]anagement further [in] bad faith refused to supply necessary documentation that the Union requested for negotiations." Id. As a remedy, the grievance sought "[a]n even split of the awards pool with [m]anagement[, r]estor[ation of] the funding for Union training[,] . . . awards to employees who were disciplined for other than performance issues[,]" and specific information concerning awards given to employees and managers. Id. at 3.

      The Agency denied the grievance on the ground that under § 7116(d) of the Statute, the Union was precluded from filing a grievance that included allegations already made in an earlier-filed ULP charge. Moreover, the Agency stated that the remedies sought by the grievance were beyond the scope of what an arbitrator could impose since such matters "are to be determined as part of the collective bargaining process." Opposition at 15.

      The Union submitted the grievance to arbitration. In the absence of a stipulated issue, the Arbitrator framed the issue as follows:

Whether the Institutional Grievance submitted by the [Union] . . . is arbitrable under the Collective Bargaining Agreement.

Award at 3.

      The Arbitrator denied the grievance. She stated that the grievance alleged that "the Agency's failure to complete the bargaining process on the 2002 [Linking [ v61 p2 ] Budget to Performance (LB2P)] awards for the Fiscal Year 2002 violated the lawful duty to bargain with the Union." Id. at 4. The Arbitrator found that "[t]his issue was raised as an unfair labor practice by the Union with the Federal Labor Relations Authority, which decided against the Union." Id. Citing the second sentence of § 7116(d) of the Statute, the Arbitrator concluded that because the Union had raised this issue as a ULP, it "may not now raise it again under the grievance procedure." [n2]  Id. at 4-5. Accordingly, she found that the grievance was not arbitrable.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award is deficient for two reasons.

      First, the Union contends that the earlier-filed ULP charge and the grievance raise different issues. According to the Union, the ULP charge was "exclusively written to address the problem of [an Agency] manager sending out a Defamation of the Union Leadership on the [Agency] internal mail system[,]" and the "grievance was written because [the Agency] walked out of the negotiations and distributed the award money." Exceptions at 1.

      Second, the Union contends that the Arbitrator erred because she refused to address the Agency's strategy of asking for a separate hearing on the threshold arbitrability issue. The Union asserts that the Agency should bear the entire cost of the arbitration under the parties' agreement. In this respect, the Union refers to a letter that it submitted to the Arbitrator after the arbitration hearing requesting that the Arbitrator find that the Agency should bear the cost of the arbitration.

B.      Agency's Opposition

      The Agency contends that the Arbitrator correctly found that the issues in both the ULP charge and the grievance were the same: in both forums, the Union alleged "that the Agency failed to bargain in good faith during the fiscal year 2002 negotiations and that the distribution of the award monies without [the Union President's] consent was a violation of the [Statute]." Opposition at 12. Further, the Agency contends that under § 7116(d), the Union, as the aggrieved party, had the option to choose its course of action and that it was bound by its choice, regardless of the outcome received in that forum.

      Alternatively, the Agency contends that, even if the issues in the grievance and the ULP charge are not the same, the Union would still be precluded from using the negotiated grievance procedure to obtain the remedies sought in the instant grievance by certain procedural requirements in the parties' agreement. Id. at 14-17. Also, the Agency maintains that the issues in the instant grievance are moot and an arbitrator would not be able to provide any remedial relief since the award money for fiscal year 2002 has been distributed to employees. Id. at 17.

      In addition, the Agency maintains that contrary to the Union's assertions, it did not intend or seek to have a separate arbitrability hearing on this matter. The Agency asserts that it timely notified the Union pursuant to Article 34, Section 6(a) that it intended to raise the arbitrability issue at the outset of the arbitration. According to the Agency, the agreement requires the party raising the arbitrability issue only to notify the opposing party that it intends to raise the threshold issue.

IV.      Analysis and Conclusions

      We review questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we determine whether the award is consistent with the applicable standard of law. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998). In making this determination, we defer to the arbitrator's underlying factual findings. See id. Where an arbitrator's substantive arbitrability determination is based on a statute, the Authority reviews that determination de novo. See Ass'n of Civilian Technicians, Show-Me Army Chapter, 58 FLRA 154, 155 (2002) (substantive arbitrability determination based on § 7116(d) of the Statute).

      We construe the Union's exception that the earlier-filed ULP charge and the grievance raise different issues as a claim that the award is contrary to § 7116(d) of the Statute. In order for a grievance to be precluded under § 7116(d) by an earlier-filed ULP charge: (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 procedure; and (3) the selection of the unfair labor practice procedures [ v61 p3 ] must have been in the discretion of the aggrieved party. [n3]  United States Dep't of the Army, Norfolk Dist., Army Corps of Eng'rs, Norfolk, Va., 59 FLRA 906, 909 (2004) (citing United States Dep't of Health & Human Servs., Soc. Sec. Admin., Office of Hearings & Appeals, Region II, 36 FLRA 448, 451 (1990)). In determining whether a grievance and a ULP charge involve the same issue, the Authority examines whether the charge and the grievance arose from the same set of factual circumstances and whether the legal theories advanced in support of the charge and the grievance are substantially similar. See United States Dep't of Hous. & Urban Dev., Denver, Colo., 53 FLRA 1301, 1317 (1998).

      In the present case, the factual circumstances presented in both the ULP and the grievance are the same. The facts underlying both the ULP and the grievance involve the Agency's actions surrounding the negotiations on the 2002 LB2P awards.

      Also, we find that the legal theories underlying the ULP charge and the grievance are substantially similar for purposes of § 7116(d). In both the ULP charge and the grievance, the Union advanced the same legal theory that the Agency failed to bargain in good faith during the fiscal year 2002 negotiations in violation of the Statute. Accordingly, we find that the legal theory underlying the ULP charge and the grievance are substantially similar. See, e.g., AFGE, AFL-CIO, Local 1411 v. FLRA, 960 F.2d 176, 178-79 (D.C. Cir. 1992) (court found grievance was barred by earlier-filed ULP charge under § 7116(d) because the grievance and the ULP charge both alleged the same violations).

      We reject the Union's claim that the two proceedings involved different legal theories in that the ULP charge was "exclusively written to address the problem of [an Agency] manager sending out a Defamation of the Union Leadership on the [Agency] internal mail system[,]" and the "grievance was written because [the Agency] walked out of the negotiations and distributed the award money." Exceptions at 1. The ULP charge specifically alleged that the Agency violated the Statute by failing to bargain in good faith regarding incentive awards and discussed the impact of the dissemination of the ARA's memo to unit employees on the parties' negotiations. Similarly, the grievance alleged that the Agency violated its statutory obligation to bargain in good faith in negotiations concerning the incentive awards and discussed the "devastating effect" of the ARA's memo on the Union's position in negotiations with the Agency. Grievance at 2. Moreover, the distribution of the award money prior to the conclusion of negotiations was discussed in both the ULP charge and the grievance in relation to the claim that the Agency violated its statutory obligation to bargain in good faith.

      Thus, based on the foregoing, we deny the Union's exception that the Arbitrator erred in finding that § 7116(d) bars resolution of the grievance as it raised the same statutory issue as the earlier-filed ULP charge.

      In addition, the Union excepts to the Arbitrator's "refusal . . . to address the [Agency's] strateg[y] of obtaining a separate hearing, and briefs on a threshold issue" of arbitrability. Exceptions at 2. In this respect, the Union maintains that the Arbitrator should have addressed and found that the Agency was responsible for the entire cost of the arbitration under the parties' national agreement. We construe the Union's exception as a claim that the Arbitrator exceeded her authority by failing to resolve an issue submitted to arbitration.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See United States Dep't of Defense, Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996) (Dep't of Defense). In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the is