20:0743(86)AR - Justice INS and AFGE Local 2724 -- 1985 FLRAdec AR
[ v20 p743 ]
The decision of the Authority follows:
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.