17:0655(94)AR - National Council of Field Labor Locals, AFGE and Labor -- 1985 FLRAdec AR

 17 FLRA No. 94
 
 NATIONAL COUNCIL OF FIELD LABOR 
 LOCALS, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO 
 Union 
 
 and 
 
 U.S. DEPARTMENT OF LABOR
 Agency
 
                                            Case No. 0-AR-632
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator William M. Edgett filed by the Agency under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
 
    The dispute in this matter concerns an experimental program to survey
 the impressions of representatives of private-sector employers and
 employees regarding inspections by the Occupational Safety and Health
 Administration.  A grievance was filed by several compliance officers,
 who conduct the inspections, which claimed that the program was in
 violation of the parties' collective bargaining agreement.
 Specifically, it was claimed that implementing the program in only two
 regions was discriminatory;  that the program placed compliance officers
 in a "compromising and intimidating position";  that the requirement
 that the compliance officers distribute the survey forms was not in
 conformance with the position description;  and that the program would
 result in compliance officers being evaluated by non-government persons.
  The grievance was not resolved and was submitted to arbitration.  At
 arbitration the Agency first claimed that under section 7116(d) of the
 Statute, /1/ the grievance was barred by an earlier-filed unfair labor
 practice charge which was ultimately withdrawn.  The Arbitrator ruled
 that the grievance was not barred by the Statute, but on the merits
 denied the grievance.
 
    In its exception the Agency contends that the grievance was barred by
 the earlier-filed unfair labor practice charge and that consequently the
 award is contrary to section 7116(d) of the Statute.
 
    As correctly noted by the Agency, section 7116(d) provides that when
 in the discretion of the aggrieved party an issue has been raised under
 the unfair labor practice procedures, the issue subsequently may not be
 raised as a grievance.  In terms of this case, the Authority concludes
 that the Agency fails to establish in its exception that the issue
 raised as an unfair labor practice was the same issue raised in the
 grievance before the Arbitrator.  As acknowledged by the Agency in its
 exception, the unfair labor practice charge was that the Agency had
 violated section 7116(a)(1), (5), and (7) of the Statute by failing to
 bargain over the impact and implementation of the experimental program.
 As already noted, it was claimed in the grievance that the program as
 applied violated a number of rights of compliance officer employees
 under the parties' collective bargaining agreement. The grievance did
 not address in any manner the failure of the Agency to bargain over the
 program.  In fact, the Agency's objection to the Union's attempt to
 raise the question of bargaining before the Arbitrator was sustained
 because the Arbitrator found that it pertained to a matter "which had
 not been raised by the grievance." Thus, because the grievance does not
 concern the bargaining rights accorded an exclusive representative under
 the Statute, which was the issue raised under the unfair labor practice
 procedures, the earlier-filed unfair labor practice charge has not been
 shown to preclude the grievance, and therefore no basis is provided for
 finding the award contrary to section 7116(d) of the Statute.  /2/ See,
 e.g., United States Department of the Treasury, Internal Revenue
 Service, Dallas District, 13 FLRA 459, 459 n.1 (1983);  Internal Revenue
 Service, Western Region, San Francisco, California, 11 FLRA 655 (1983).
 
    Accordingly, the Agency's exception is denied.  Issued, Washington,
 D.C., April 23, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(d) of the Statute pertinently provides:
 
          (I)ssues 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.
 
 
    /2/ In view of this decision the Authority need not address, and
 expresses no opinion on, other contentions of the Agency and findings of
 the Arbitrator under section 7116(d) of the Statute.