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55 FLRA No. 68
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3475
U.S. DEPARTMENT OF HOUSING AND
April 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision of Donald S. Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Bernard Marcus 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator found that the grievances were barred by section 7116(d) of the Statute. For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
On September 13, 1996, Dorothy Pleasant, in her capacities both as a grievant and as president of the Union, filed three grievances and a notice of arbitration. [n1] The notice raised issues regarding Pleasant's five-day suspension and "[c]ontinuing enforced verbal [absent without leave] AWOL suspension." Award at 5. The notice also protested "continuing disciplinary actions taken against . . . Pleasant" instituted by Agency managers. Id.
As relevant here, Pleasant and the Union also filed an unfair labor practice (ULP) charge related to the five-day suspension and several ULP charges related to the Agency's action of placing Pleasant on AWOL status. All of the charges were dismissed by an Authority Regional Director based on the absence of evidence establishing that the actions had been taken in retaliation for Pleasant's involvement in activities protected by the Statute.
The Arbitrator framed the issue to be decided as follows:
Are the three grievances filed together with the notice of arbitration lodged by the Union and the grievant on September 13, 1996 barred by statute (5 U.S.C.A. §7116(d)) because unfair labor practice charges covering the same matters were filed with, and considered by, the Federal Labor Relations Authority ("FLRA")?
Award at 2. [n2]
Examining the grievances concerning the five-day suspension, the Arbitrator determined that they were clearly barred by section 7116(d) of the Statute. Award at 8. In this respect, the Arbitrator noted that the Authority had "exhaustively treated the substantive issue regarding the propriety of the suspension. The charging parties' grievance presents no theories of violation not presented to FLRA in the ULP charge." Award at 9. The Arbitrator further stated that the D.C. Circuit's decision in American Federation of Government Employees, Local 1411 v. FLRA, 960 F.2d 176 (D.C. Cir. 1992) (AFGE Local 1411), was "dispositive of the issue." Award at 9. [n3]
Turning to the AWOL grievance, the Arbitrator found that this matter had been the subject of repeated [ v55 p418 ] ULP charges filed with the Authority. The Arbitrator found that the grievance was:
(1) initiated at the discretion of both the Local Union and Pleasant, the aggrieved party; (2) implicates the same facts as both prior and subsequent unfair labor practice charges; and (3) presents the same theory of violation under the same statute and the same provisions of the labor agreement presented in the prior unfair labor practice charges.
In sum, the Arbitrator concluded that the grievances were barred by section 7116(d) of the Statute.
III. Position of the Parties
A. Union's Exceptions
The Union argues that the award is deficient on two grounds. First, the Union contends that Pleasant and the Union are not the same aggrieved party under section 7116(d) of the Statute. The Union argues that Pleasant invoked the "Institutional right of the Union" in filing the ULP charges and that she invoked her right as an employee in filing the grievances. Exceptions at 2. Second, the Union argues that the theories of violation differ between the ULP charges and the grievances. In this respect, the Union claims the grievances concern contractual violations while the ULP charges deal with statutory violations. The Union also states that a decision of the U.S. Department of Labor (DOL) supports its claim that the theories of violation are different. According to the Union, DOL determined that Pleasant had an injury-related disability during the same time that she was placed on AWOL.
B. Agency's Opposition
The Agency contends the Union cannot plausibly claim that Pleasant, as the president of the Union, acted independently in filing ULP charges over the same issues that Pleasant, as employee/grievant, filed in the arbitration. The Agency maintains that a comparison of the ULP charges, which were presented to the Arbitrator, and the grievances in this case shows that the factual circumstances are the same and the legal theories presented are substantially similar. The Agency also states that the DOL decision is irrelevant since it does not address whether the grievances are barred by section 7116(d) of the Statute.
IV. Analysis and Conclusions
An exception alleging that an award is contrary to law is reviewed by the Authority de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. U.S. Department of the Treasury, U.S. Customs Service, Portland, Oregon and National Treasury Employees Union, Chapter 156, 54 FLRA 764, 769-70 (1998) (NTEU, Chapter 156) (citing National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998)). In making that assessment, the Authority defers to the arbitrator's underlying findings of fact. Id.
As the Union's exceptions challenge the award's consistency with section 7116(d) of the Statute, we review the exceptions de novo.
In order for a grievance to be barred from consideration under section 7116(d) of the Statute by an earlier-filed ULP charge: (1) the issue that is the subject matter of the grievance must be the same as the issue that is the subject matter of the ULP; (2) such issue must have been earlier raised under the ULP procedures; and (3) the selection of the ULP procedures must have been at the discretion of the aggrieved party. See, e.g., U.S. Department of Veterans Affairs, Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 392 (1996). In determining whether a grievance and a ULP charge involve the same issue, the Authority examines whether the ULP charge and the grievance arose from the same set of factual circumstances and whether the legal theories advanced in support of the ULP charge and the grievance are substantially similar. See id. at 392-93.
A. Pleasant was the same "aggrieved party" in both the grievances and ULP charges which were filed at her discretion
There is no dispute in this case that the ULP charges and the grievances were filed by both the Union and Pleasant. Furthermore, it is clear that the charges focus on the Agency's action in placing Pleasant on AWOL status and proposing a five-day suspension. The notice of arbitration, which identifies the nature of the [ v55 p419 ] grievances, also focuses on the same disciplinary action against Pleasant. Specifically, the grievances raise issue with the Agency's action in placing Pleasant on AWOL status and the decision to implement a five-day suspension. Although a ULP charge may be formally filed by a union, when it is drawn, in part, to allege specifically a violation of the grievant's rights, the Authority has concluded that the grievant was the aggrieved party in both the ULP charge and grievance. See, e.g., Army Finance, 38 FLRA at 1353. Since the ULP charges in this case focus on actions taken against Pleasant as an individual employee, and the grievances relate to the same actions taken against Pleasant in her capacity as an employee, we find that Pleasant was the aggrieved employee in both the grievances and ULP charges. Furthermore, there is no showing that Pleasant was deprived of discretion in deciding which procedure to pursue.
B. The same "legal theories" were involved in both the grievances and ULP charges
As noted earlier, to determine whether a grievance and a ULP charge involve the same issue, the Authority examines whether the legal theories underlying each are substantially similar. Also, as noted earlier, the Authority defers to an arbitrator's underlying factual findings in assessing whether the arbitrator's legal conclusions are consistent. NTEU, Chapter 156, 54 FLRA at 769-70. In this case, the Arbitrator found that the five-day suspension "presents no theories of violation not presented to FLRA in the unfair labor practice charge." Award at 9. As to the AWOL grievance, the Arbitrator found that the grievance "presents the same theory of violation under the same statute and the same provisions of the labor agreement presented in the prior unfair labor practice charges." Id. Our review of the award in this case confirms that, in reaching his conclusions, the Arbitrator made a purely factual assessment that the underlying theories were the same. These factual findings, to which we defer, fully support the Arbitrator's legal conclusion that the grievances were barred under section 7116(d). [n4]
In sum, we conclude that the Union has failed to establish the award is deficient. Accordingly, we deny the exceptions.
The Union's exceptions are denied.
Footnote # 1 for I. Statement of the Case
Under the parties' collective bargaining agreement, grievances with respect to disciplinary actions may be referred directly to arbitration without going through any preliminary grievance steps. See Award at 3.
Footnote # 2 for I. Statement of the Case
Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues 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.
Footnote # 3 for I. Statement of the Case
In AFGE Local 1411, the D.C. Circuit upheld the Authority's decision in U.S. Department of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 38 FLRA 1345 (1991) (Member Talkin dissenting) (Army Finance), finding that a grievance was barred under section 7116(d) by an earlier filed ULP charge.
Footnote # 4 for I. Statement of the Case
The DOL decision, on which the Union relies, does not lead to a different result. That decision establishes only that Pleasant had an injury-related disability and does not address whether the underlying theories in the grievances and the ULP charges were the same.