18:0314(40)AR - Federal Bureau of Prisons and AFGE Local 3690 -- 1985 FLRAdec AR

 18 FLRA No. 40
 
 FEDERAL BUREAU OF PRISONS 
 Agency 
 
 and 
 
 AMERICAN FEDERATION 
 OF GOVERNMENT EMPLOYEES, 
 LOCAL 3690 
 Union
 
                                            Case No. 0-AR-759
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Lawrence Kanzer 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 grievance in this case involves the suspension of the grievant,
 the local union president, for three days for inattention to duty and
 breach of security as a result of a prison inmate having escaped.  Two
 days after management proposed to suspend the grievant, the national
 union council filed an unfair labor practice charge alleging that the
 Activity had violated section 7116(a)(1) and (2) of the Statute by
 proposing the discipline of a local union president, the grievant,
 because the charges were false and without merit and constituted a
 reprisal against the grievant for his union activities.  /1/ Thereafter,
 the Activity decided to suspend the grievant and the grievant filed the
 grievance in this case claiming that the suspension was not warranted
 and solely contending that instead "management is simply harassing a
 union official in an ongoing personal attack because of union
 functions." The grievance was not resolved and was submitted to
 arbitration at which the Activity claimed that under section 7116(d) of
 the Statute, /2/ the grievance was precluded because the same issue had
 been earlier raised by the unfair labor practice charge.  The Arbitrator
 however rejected the Activity's claim finding that it had waived its
 right to question the arbitrability of the grievance.  On the merits the
 Arbitrator determined that the Activity had failed to sustain the
 suspension and he ordered the suspension reversed.
 
    As one of its exceptions, the Agency contends that the award is
 contrary to section 7116(d) of the Statute.  The Authority agrees.
 
    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.  In Department of Defense Dependents Schools, Pacific Region
 and Overseas Education Association, 17 FLRA No. 135 (1985), the
 Authority summarized the requirements for section 7116(d) grievance
 preclusion:  (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 all elements of section 7116(d)
 attached and that consequently the grievance submitted to the Arbitrator
 was precluded by the Statute.  Specifically, the issue which was the
 subject matter of the unfair labor practice charge is the same issue
 which was the subject matter of the grievance.  See id.; Department of
 the Treasury, U.S. Customs Service, Region VIII, San Francisco,
 California, 13 FLRA 631 (1984).  As noted, the charge alleged that the
 Activity had violated section 7116(a)(1) and (2) by proposing the
 discipline of the grievant because the charges were false and
 constituted a reprisal against the grievant for union activities, and
 the grievance alleged that the decision to suspend the grievant was not
 warranted because it simply constituted harassment of the grievant for
 his union activities.  Thus, the Authority finds that the issue raised
 both by the charge and the grievance was the same, and it is not
 disputed that such issue was earlier raised under the unfair labor
 practice procedures by the filing of the charge.  Finally, the selection
 of the unfair labor practice procedures was in the discretion of the
 grievant as the aggrieved party.  The charge was filed two days after
 the discipline of the grievant was proposed and was clearly on his
 behalf as the local union president, and the grievance was not filed by
 the grievant until the determination not to issue a complaint was
 apparently imminent.  In such circumstances the Authority finds that the
 filing of the unfair labor practice charge constituted the grievant's
 election of the unfair labor practice procedures.  See Department of
 Defense Dependents Schools at 3.
 
    In sum, there was an election in the discretion of the aggrieved
 party to raise the issue in this case under the unfair labor practice
 procedures. The Authority has recognized that 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.  Id. at 4.  Thus, the matter
 raised by the filing of the grievance could not be relitigated under the
 grievance procedure and consequently the grievance was precluded by the
 Statute from consideration by the Arbitrator.  For these reasons, the
 award is deficient as contrary to section 7116(d) and is set aside.  /3/
 
 Issued, Washington, D.C., May 24, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ After an investigation the Authority's regional director
 determined not to issue a complaint and the appeal from that decision
 was denied by the Authority's General Counsel
 
 
    /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.