[ v18 p314 ]
The decision of the Authority follows:
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.