[ v17 p969 ]
The decision of the Authority follows:
17 FLRA No. 131 HEADQUARTERS, SPACE DIVISION, LOS ANGELES AIR FORCE STATION, CALIFORNIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2429 Union Case No. 0-AR-724 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Michael D. Rappaport 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 grievance in this case involves the application of certain appraisal procedures to bargaining-unit employees. A grievance was filed and submitted to arbitration. The Arbitrator stated the initial issue to be whether parts of the grievance were precluded by an earlier-filed unfair labor practice charge. As to the disputed portions of the grievance, the Arbitrator determined that those portions were precluded by the unfair labor practice charge. In this respect the Arbitrator ruled that the issues of the charge and the grievance were essentially the same. He further ruled that these issues had been raised under the unfair labor practice procedures within the meaning of section 7116(d) of the Statute /1/ despite the unfair labor practice charge having been withdrawn. As the Arbitrator stated: (I)n a clear attempt to reduce forum shopping, the emphasis seems to be in the initial choice of forum . . . (and) the fact that the matter was subsequently withdrawn, after the forum had been selected, would have little or no bearing on the matter. The language of the Statute itself talks in terms of "raising" the issue under either procedure. It does not talk in terms of pursuing the matter to its conclusion or even in terms of hearing the matter under either procedure. . . . The issue is raised when the forum is selected . . . (and) the Union selected as the forum to raise the issues in question the unfair labor practice procedure. As to the portions of the grievance that were not precluded, the Arbitrator stated the issue to be whether the parties' collective bargaining agreement had been violated by the Activity's implementation of the appraisal procedures and he determined that the Activity had not violated the agreement. Accordingly, the Arbitrator denied the grievance. In its first exception the Union contends that the Arbitrator erred by finding portions of the grievance precluded by section 7116(d) of the Statute. The Union essentially argues that the disputed portions of the grievance were not barred by the unfair labor practice charge because the charge was withdrawn and never adjudicated and because the issues were different. The Authority concludes that the Union's exception provides no basis for finding that the Arbitrator's award is contrary to section 7116(d) of the Statute. As noted, the Arbitrator ruled that the issues were essentially the same and the Union in its exception fails to establish otherwise. See Department of the Treasury, U.S. Customs Service, Region VIII, San Francisco, California, 13 FLRA 631 (1984). The Arbitrator also ruled that the filing of the unfair labor practice charge constituted the raising of the issues under the unfair labor practice procedures, which constituted the election of those procedures and precluded the raising of those issues subsequently as a grievance. The Arbitrator found that the critical event with respect to this aspect of section 7116(d) occurs when the procedures are selected by the filing of a charge or a grievance. In this regard, contrary to the argument of the Union, the Authority finds that the Arbitrator properly interpreted and applied section 7116(d) to the Union's invocation of the unfair labor practice procedures. Cf. Department of the Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA 198 (1983) (In a finding adopted by the Authority, the judge found a portion of the complaint precluded by an earlier-filed grievance despite the grievance having been withdrawn without resolution.). More specifically, the Arbitrator's determination that the disputed portions of the grievance had been "raised" within the meaning of section 7116(d) at the time of the filing of the unfair labor practice charge, despite the charge subsequently having been withdrawn and never adjudicated, is consistent with the ordinary meaning of the term "raised," which is "to bring about; set in motion." Webster's Third New International Dictionary (1976 ed.). Furthermore, this determination is fully consonant with the language and purpose of the Statute in placing the election of procedures squarely "in the discretion of the aggrieved party." By making the filing of the charge the determinative factor rather than subsequent action respecting the charge, the Arbitrator's award effectuates this purpose of the Statute by having assured the exercise by the Union of the election of the unfair labor practice procedures. Likewise, the Arbitrator's recognition of the filing date as the operative factor in the election of procedures accords with section 7121(d) and (e) of the Statute which similarly grant an aggrieved employee an option of raising a matter under various procedures and which explicitly recognize filing as the determinative factor in when the election of procedures is exercised. Consequently, the Union has failed to establish that the award is deficient under the Statute. See Overseas Education Association and Department of Defense Dependents Schools, 16 FLRA No. 95 (1984). In its other exceptions the Union essentially contends that the Arbitrator's denial of the other portions of the grievance is deficient in numerous respects. However, as noted, the Arbitrator's award denying such portions of the grievance was expressly based on his determination that the Activity had not violated the collective bargaining agreement. Thus, the Union's exceptions constitute nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement and provide no basis for finding the award deficient. See, e.g., American Federation of Government Employees, Local 1858, AFL-CIO and U.S. Army Missile Command, Missile and Munitions Center and School, Redstone Arsenal, Alabama, 13 FLRA 343 (1983). Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., May 10, 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.