U.S. Federal Labor Relations Authority

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16:0648(95)AR - Overseas Education Association and DOD Dependents Schools -- 1984 FLRAdec AR

[ v16 p648 ]
The decision of the Authority follows:

 16 FLRA No. 95
                                            Case No. O-AR-437
    This matter is before the authority on an exception to the awarD of
 Arbitrator Howard G. Gamser filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
    The Union filed a grievance in this case which the Agency claimed was
 barred by the Union having earlier raised the same issue as an unfair
 labor practice.  The Arbitrator noted that before the grievance had been
 filed, the Union had filed an unfair labor practice charge on the same
 issue and that the regional director of the Authority had refused to
 issue a complaint which refusal was sustained by the General Counsel of
 the Authority.  Thus, the Arbitrator determined that under section
 7116(d) of the Statute, /1/ the matter in dispute was barred from being
 processed as a grievance.  In this regard the Arbitrator essentially
 reasoned that since the Union had earlier filed a timely unfair labor
 practice charge over substantially the same issue and the Regional
 Director had refused to issue a complaint, and the Office of the General
 Counsel of the Authority denied the Union's request for review of the
 Regional Director's decision, this constituted an election by the Union
 of that procedure under section 7116(d).  As the Arbitrator put it:
 "Where the timely filed charge is concerned with subject matter
 substantially identical to that later found to be the basis for an
 appeal under the grievance procedure which has been negotiated, the
 arbitrator is without competence to decide the merits already passed
 upon by the General Counsel and not subject to appeal from his ruling."
 Accordingly, as his award the Arbitrator denied the grievance.
    In its exception the Union essentially contends that the award is
 contrary to section 7116(d) of the Statute.  The Union primarily argues
 that Congress did not intend that when the General Counsel refuses to
 issue a complaint, the aggrieved party is precluded by section 7116(d)
 from raising the matter as a grievance under the negotiated grievance
    The Authority concludes that the Union's exception provides no basis
 for finding that the Arbitrator's award is in any manner contrary to
 section 7116(d) of the Statute.  As noted, the Arbitrator in his award
 ruled that the raising of this matter as an unfair labor practice, which
 was processed to a final decision sustaining the refusal to issue a
 complaint, constituted an election of that procedure which precluded the
 raising of the matter as a grievance.  In these circumstances, contrary
 to the argument of the Union, the Authority finds that the Arbitrator in
 denying the grievance properly interpreted and applied section 7116(d)
 to the Union's invocation of the unfair labor practice proceedings and
 that consequently the Union has failed to establish that the award is
 deficient under the Statute.  Accordingly, the exception is denied.
 Issued, Washington, D.C., November 30, 1984
                                       Henry B. Frazier III, Acting
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 7116(d) pertinently provides:
          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 section, but not under both