[ v16 p648 ]
The decision of the Authority follows:
16 FLRA No. 95 OVERSEAS EDUCATION ASSOCIATION Union and DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS Agency Case No. O-AR-437 DECISION 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 procedure. 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 Chairman 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 procedures.