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The decision of the Authority follows:
17 FLRA No. 135 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, PACIFIC REGION Activity and OVERSEAS EDUCATION ASSOCIATION Union Case No. 0-AR-593 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Ted T. Tsukiyama 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 Union filed an opposition. According to the record before the Authority, this case arose when there was a reduction in the number of industrial arts teaching positions at a high school in the Activity. As a result the grievant, an industrial arts teacher and an area director of the Union, received an advance notice of separation by reduction-in-force and ultimately was transferred to a teaching position at another high school of the agency. After receiving the notice, the grievant in his representative capacity as area director filed an unfair labor practice charge claiming that the Activity had violated section 7116(a)(1) and (2) of the Statute by proceeding to eliminate the teaching position of an employee, the grievant, acting in the capacity as a representative of a labor organization. After investigation the Authority's Regional Director determined not to issue a complaint because there was no evidence of conduct motivated by consideration of the grievant's union activities. Approximately one week later, the Union requested to withdraw the charge and the Regional Director rescinded his determination not to issue a complaint and approved the withdrawal. Approximately another week later, the grievant filed the grievance in this case claiming that the abolishing of his position was in violation of the parties' collective bargaining agreement, principally Article 2, Section 3, /1/ as a reprisal for his union activities. At arbitration the Activity claimed that under section 7116(d) of the Statute /2/ and under the parties' collective bargaining agreement, the dispute before the Arbitrator was precluded from being raised as a grievance because of the earlier-filed unfair labor practice charge. The Arbitrator however determined that the grievance was arbitrable by finding that it was not barred by the agreement and by ruling that he was not authorized to apply section 7116(d) of the Statute. On the merits the Arbitrator found that the disputed actions were prompted and motivated by consideration of the grievant's union activities in violation of provisions of the parties' agreement which the Arbitrator noted were drawn directly from section 7102 of the Statute protecting union activity. Accordingly, the Arbitrator sustained the grievance and ordered the grievant reinstated to his restored former teaching position with backpay. As one of its exceptions, the Agency essentially contends that the award is contrary to section 7116(d) of the Statute. Section 7116(d) effectively 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. Thus, the elements of section 7116(d) which must attach in order for a grievance to be precluded are: (1) the issue which is the subject matter of the grievance is the same as the issue which is the subject matter of the unfair labor practice; (2) such issue was earlier raised under the unfair labor practice procedures; and (3) the selection of the unfair labor practice procedures was in the discretion of the aggrieved party. In terms of this case, the Authority concludes that the Agency has established that all the elements of section 7116(d) attached and that consequently the dispute before the Arbitrator was precluded by the Statute from being raised as a grievance. Specifically, the Agency has established that the issue which was the subject matter of the unfair labor practice charge is the same as that which is the subject matter of the grievance. See, e.g., Department of the Treasury, U.S. Customs Service, Region VIII, San Francisco, California, 13 FLRA 631 (1984). As noted, the unfair labor practice charge alleged that by proceeding to eliminate the teaching position of the grievant, a union representative, the Activity violated section 7116(a)(1) and (2) of the Statute, and the grievance alleged that by abolishing the grievant's position as a reprisal for his union activities, the Activity violated the parties' collective bargaining agreement, principally the provision restating nearly verbatim the employees' rights provisions of section 7102 of the Statute. Thus, the Authority finds that the issue raised both by the charge and the grievance was the same: whether the Activity's actions were motivated by consideration of the grievant's union activities in violation, either directly or derivatively, of employees' rights under the Statute. It is further established that such issue was earlier raised under the unfair labor practice procedures by the filing of the unfair labor practice charge. Under the terms of section 7116(d), the filing of the charge rather than the subsequent action of withdrawing the charge and filing the grievance constitutes the determinative factor as to when the election of procedures in this case was exercised. See Headquarters, Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, Local 2429, 17 FLRA No. 131 (1985). Finally, it is likewise established that the selection of the unfair labor practice procedures was in the discretion of the grievant, the aggrieved party. Contrary to the argument of the Union, this use of "party" in section 7116(d) does not require identity of filing parties in order for this element of the preclusion to attach. Section 7116(d) does not reference filing party, but rather references "in the discretion of the aggrieved party," the party by whose choice the particular procedures are selected. Accordingly, this element of section 7116(d) attaches when the choice of particular procedures has been made by the aggrieved party regardless of who is formally the filing party. Thus, the Authority finds that the filing of the unfair labor practice charge by the grievant in his representative capacity was on his own behalf and constituted his election as the aggrieved party of the unfair labor practice procedures. See Internal Revenue Service, Chicago, Illinois, 3 FLRA 479 (1980) (In this case the Authority adopted and expressly approved the judge's ruling that the complaint issued on a charge filed by the union was precluded under section 7116(d) by a grievance which had been filed earlier by individual employees. The judge had concluded that although the union was the charging party, the aggrieved parties were the individual employees and they had earlier elected to raise the disputed issue as a grievance.); cf. United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA 512 (1980) (In this case the Authority expressly adopted the judge's ruling that the complaint issued on a charge filed by the union was not precluded under section 7116(d) by a grievance the union had earlier filed. In this regard the judge had concluded that the grievance had been filed by the union in a representative capacity on behalf of the aggrieved employee while the unfair labor practice charge had been filed by the union in its institutional capacity as the bargaining representative of employees and the aggrieved party.). In sum, there was an election in this case in the discretion of the aggrieved party to raise the disputed matter under the unfair labor practice procedures. In this regard the clear purpose and effect of section 7116(d) is to prevent relitigation of an issue in another forum after a choice of procedures in which to raise the issue has been made by the aggrieved party. Internal Revenue Service, Western Region, San Francisco, California, 9 FLRA 480 (1982); Internal Revenue Service, Chicago, Illinois, 3 FLRA 479 (1980). Thus, the matter in dispute in this case was prohibited from being relitigated under the grievance procedure, and consequently the grievance before the Arbitrator was precluded by the Statute from consideration. For these reasons, the award is deficient as contrary to section 7116(d) of the Statute and is set aside. /3/ Issued, Washington, D.C., May 13, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ At all relevant times, Article 2, Section 3 of the parties' collective bargaining agreement pertinently provided: Each teacher has the right, freely and without fear of penalty or reprisal, to form, join, and assist the Association and shall be protected in the exercise of this right. Management shall ensure that teachers are apprised of their rights, and that no interference, restraint, coercion or discrimination is practiced within DODDS to encourage or discourage membership in the Association. /2/ 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. /3/ In view of this decision, it is not necessary to address the Agency's other exceptions.