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39:1322(116)AR - - DOI, Bureau of Indian Affairs, Chemawa Indian Boarding School and NFFE Local 241 - - 1991 FLRAdec AR - - v39 p1322

[ v39 p1322 ]
The decision of the Authority follows:

39 FLRA No. 116













March 22, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Kenneth J. Latsch filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency's opposition to the Union's exception was untimely filed and has not been considered.(*)

For the following reasons, we conclude that the award is contrary to section 7116(d) of the Statute. Accordingly, we will set aside the award and remand the matter to the parties for resubmission to arbitration.

II. Background and Arbitrator's Award

On May 30, 1989, the Agency sent a letter to the Union giving notice that the Agency was placing certain employees in "nonduty/nonpay" status from the middle of June 1989, to August 27, 1989. Award at 9. On June 8, 1989, the Union filed a grievance alleging, among other things, that the Agency's "furloughing of the employees was not in accord with statutory requirements . . . ." Exception at 1. Because the parties could not resolve the issue, the Union invoked arbitration on June 21, 1989. Award at 11.

On July 17, 1989, the Union filed an unfair labor practice (ULP) charge against the Agency, alleging that the Agency had furloughed the Union president and had failed to bargain over the furlough. Id. at 11-12. On November 30, 1989, the Authority's Regional Director issued a complaint in Case No. 9-CA-90546.

The Arbitrator denied the grievance finding that it was "not arbitrable." Award at 18. The Arbitrator stated that section 7116(d) of the Statute requires the Union to make "a decision as to which forum it wishes to use to adjudicate a personnel dispute." Id. at 16. The Arbitrator found that the issues in the grievance and the ULP charge were the same, explaining that "[w]hile the [ULP] complaint deals with a specific instance, the underlying issue (the employer's decision to furlough employees) is the same as that presented in the grievance." Id. at 17. Therefore, the Arbitrator concluded that "[w]hile the union did not file the complaint and the arbitration request at the same time, it appears that it would be inappropriate to proceed in this forum while the statutory unfair labor practice is also under consideration." Id. Accordingly, the Arbitrator denied the grievance.

III. Union's Exception

The Union contends that the award violates section 7116(d) of the Statute. The Union maintains that because the issues in the grievance and the ULP are different "there is no bar in º 7116(d) to either action . . . ." Exception at 2. The Union states that "[t]he gravamen of the grievance was that the furloughing of the employees was not in accord with statutory requirements established a year earlier in Public Laws 100-297 and 100-427." Id. at 1. In contrast, the Union maintains that "the issue raised by the [ULP] was a refusal to bargain by Management." Id.

IV. Analysis and Conclusions

We conclude that section 7116(d) of the Statute does not bar consideration of the grievance in this case and, therefore, we will set aside the award and remand the matter to the parties for further processing.

Section 7116(d) provides that issues which may be raised under a negotiated grievance procedure may, in the discretion of the aggrieved party, be raised under that procedure or as an unfair labor practice, but not under both procedures. An issue is "raised" within the meaning of section 7116(d) at the time of the filing of a grievance or an unfair labor practice charge even if the grievance or charge is not adjudicated on the merits. For example, Lowry Air Force Base, Denver, Colorado, 32 FLRA 792, 794 (1988); Headquarters, Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, Local 2429, 17 FLRA 969, 970-71 (1985).

It is clear from the record that the grievance was filed on June 8, 1989, and that the unfair labor practice charge was filed on July 17, 1989. Because the grievance was filed first, the ULP charge does not bar resolution of the grievance under section 7116 of the Statute. Although the Regional Director issued a complaint on the later-filed ULP charge before the grievance was processed to arbitration, this action does not alter the filing dates, which are the determinative factors under section 7116(d). We conclude, therefore, that the Arbitrator's conclusion that the later-filed ULP charge was a bar under section 7116(d) of the Statute to arbitration of the grievance on the merits is inconsistent with law. Compare U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 36 FLRA 441, 446 (1990) (Arbitrator determined correctly that an earlier-filed ULP charged barred consideration of the grievance). As the grievance was filed before the ULP charge, it is unnecessary to address whether the issues raised in the grievance and the charge are the same.

V. Decision

The award is set aside. The matter is remanded to the parties for resubmission to arbitration before a mutually agreed upon arbitrator.

(If blank, the decision does not have footnotes.)

*/ The Authority issued an Order directing the Agency to show cause why its opposition should not be considered untimely filed. The Agency did not respond to the Order.