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58 FLRA No. 32
Association of Civilian Technicians Show-me Army Chapter and U. S. Dept. of The Army, Missouri National Guard Jefferson City, Missouri (Miller, Arbitrator), 0- AR-3524 (Decided October 21, 2002)
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 and the Arbitrator dismissed the grievance. The Authority found that the award was contrary to § 7116(d) of the Statute, and remanded it to the Arbitrator.
The Authority noted that 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. 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. 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.
In this case, 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 Authority further noted that the fact that the Arbitrator relied on wording from the parties' agreement did not support a different conclusion. In this connection, the contract wording relied on by the Arbitrator was identical to § 7116(d) of the Statute in all relevant respects. The Authority found that the contract provision should be interpreted in the same manner as § 7116(d), and thus, the award was deficient.