20:0743(86)AR - Justice INS and AFGE Local 2724 -- 1985 FLRAdec AR

 20 FLRA No. 86
 
 U.S. DEPARTMENT OF JUSTICE, 
 IMMIGRATION AND NATURALIZATION SERVICE
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2724
 Union
 
                                            Case No. 0-AR-980
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Charles T. Schmidt 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 Agency filed an
 opposition.  /1/
 
    According to the record before the Authority, this case arose as the
 result of the reassignment of the grievant.  On November 7, 1983,
 management proposed the suspension and reassignment of the grievant for
 conduct unbecoming a border patrol officer.  On December 19, 1983, the
 Union filed an unfair labor practice charge, as to which there was
 subsequently a refusal to issue a complaint, claiming in general that on
 November 7, 1983, the Agency unilaterally changed working conditions and
 requesting specifically as redress that the reassignment of the grievant
 be held in abeyance.  On December 29, 1983, the grievant was advised
 that as a final decision on the proposed disciplinary action he was
 being permanently reassigned.  Thereafter, pursuant to the terms of the
 parties' agreement, arbitration was directly invoked by the Union in
 behalf of the grievant challenging that decision.  The Arbitrator stated
 the initial issue to be whether the grievance was precluded from
 consideration under the Statute by the unfair labor practice charge.  In
 this respect the Arbitrator noted that although the charge was broadly
 framed, the charge was clearly drawn to reflect and specifically relate
 to the grievant's reassignment for misconduct and the date given by the
 Union as when the charge arose was the date of the proposed action
 against the grievant.  Consequently, he ruled that the substance of the
 issue raised in the grievance was substantially the same as the issue
 raised by the earlier-filed unfair labor practice charge.  The
 Arbitrator further found with reference to the "discretion of the
 aggrieved party" language of section 7116(d) of the Statute /2/ that
 although the charge was formally filed by the Union, the filing was by
 election of the grievant.  Accordingly, as his award the Arbitrator
 dismissed the grievance as being precluded by the Statute.
 
    In its exception the Union essentially maintains that the grievance
 was not precluded by section 7116(d) and that therefore the award is
 contrary to the Statute.  Specifically, the Union argues that no issues
 of the charge and the grievance were the same and that the grievant was
 not the aggrieved party as to the charge.  The Authority finds that the
 Union has failed to establish that the award finding the grievance
 precluded 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.  In Department of Defense Dependents Schools, Pacific Region
 and Overseas Education Association, 17 FLRA No. 135 (1985), petition for
 review filed sub nom.  Overseas Education Association, NEA v. FLRA, No.
 85-1420 (D.C. Cir.  July 10, 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, as has been
 noted, the Arbitrator determined that all the elements of section
 7116(d) had attached.  With respect to the first element, the Arbitrator
 primarily concluded that while broadly framed, the charge was clearly
 drawn to specifically relate to the reassignment of the grievant for
 misconduct.  Thus, he ruled that the issue which was the subject matter
 of the grievance was substantially the same issue which was the subject
 matter of the unfair labor practice charge, and the Authority finds that
 the Union in its exception fails to establish otherwise.  See
 Headquarters, Space Division, Los Angeles Air Force Station, California
 and American Federation of Government Employees, Local 2429, 17 FLRA No.
 131 (1985).  The Union in its exception also disputes that the selection
 of the unfair labor practice procedures was in the discretion of the
 grievant as the aggrieved party.  The Authority has held with respect to
 the use of "party" that 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.  DoDDS, Pacific Region.
 In this regard, as has been noted, the Arbitrator observed that the
 general allegations of the charge, in addition to being drawn to
 specifically relate to relief for the grievant, also provided the date
 of receipt by the grievant of the proposed action as the date the charge
 arose.  For these reasons the Arbitrator essentially found that the
 grievant was the aggrieved party and that both the Union's filing of the
 charge and invoking of arbitration was in a representative capacity in
 behalf of the grievant.  Because the charge was indisputably filed
 first, the Arbitrator ruled that in terms of section 7116(d), this
 constituted the choice and selection of the unfair labor practice
 procedures by the grievant, and the Authority finds that the Union's
 exception provides no basis for finding such determination to be
 contrary to the Statute.  See Federal Bureau of Prisons and American
 Federation of Government Employees, Local 3690, 18 FLRA No. 40 (1985).
 
    Accordingly, the Union's exception is denied.
 
    Issued, Washington, D.C., November 25, 1985
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ In addition, the Agency has also filed a motion to strike a
 document submitted by the Union in support of its exception.  Because no
 basis has been established for excluding that document, the motion is
 denied and the document has been considered.
 
 
    /2/ Section 7116(d) of the 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.