17:1001(135)AR - DOD Dependents Schools, Pacific Region and Overseas Education Association -- 1985 FLRAdec AR

 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 and the Regional Director rescinded his determination not to issue a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.