71 FLRA No. 118                                                                                                                                                                              

 

SPORT AIR

TRAFFIC CONTROLLERS ORGANIZATION

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF THE AIR FORCE

EDWARDS AIR FORCE BASE, CALIFORNIA

(Agency)

 

0‑AR‑5483

 

_____

 

DECISION

 

March 10, 2020

 

_____

 

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member DuBester dissenting)

 

Decision by Member Abbott for the Authority

 

1. Statement of the Case

    

   In this case, we remind the federal labor-management relations community that the first‑in‑time requirement for choice‑of‑forum provisions applies even if a charge is later withdrawn.^[1] 

    

   In this case, the parties disputed whether they were governed by a 1994 collective‑bargaining agreement (1994 CBA) or an agreement implemented by the Agency in 2017 (new CBA).^[2]  The Union grieved the Agency’s denial of the customary twenty hours of official time per week as provided by the parties’ 1994 CBA.  Arbitrator Jill Klein found that the parties were governed by the new CBA, and that the Agency did not violate the Federal Service Labor-Management Relations Statute (Statute), Agency regulation, or the new CBA when it failed to schedule twenty hours per week of official time for the Union president.  Because the grievance and an earlier-filed unfair‑labor‑practice (ULP) charge both raise the same issue—the legality of the Agency’s implementation of the new CBA—we find that the grievance is barred by § 7116(d) of the Statute.^[3]  Therefore, we vacate the award as contrary to law.

    

2. Background and Arbitrator’s Award

    

   As relevant here, on December 7, 2015, the Agency provided notice of its desire to renegotiate the 1994 CBA.  The parties met in January 2016 to discuss ground rules.  At the meeting, the Union refused to recognize the Agency’s designated representatives, and after three months of back and forth, the Agency filed a ULP charge against the Union on May 4, 2016.^[4]  

    

   On February 22, 2017, while its charge remained pending, the Agency sent an email to the Union asserting that the Union waived is right to bargain over the new CBA, and that the Agency’s “last, best proposal” for a new CBA—attached to the email—would be implemented on May 1, 2017.^[5]  Over the next few days, the Union asserted that it did not waive its right to bargain over ground rules or the new CBA and that it agreed to some of the ground rules, but would like to talk about the others.  On March 13, the Agency responded reiterating that the Union waived its right to bargain, and that the Agency intended to implement the new CBA on May 1.

    

   On March 27, 2017, the Union filed a            ULP charge alleging that the Agency failed to bargain in good faith by “notif[ying] the Union of its intention to unilaterally implement a ‘collective[-]bargaining agreement’ on May 1, 2017.”^[6]  On April 24, the Union filed the instant grievance, alleging the Agency violated the parties’ 1994 CBA by failing to schedule the Union president for twenty hours of official time per week for the duty period starting in May of 2017.  On      September 27, 2017, the Union amended its ULP charge to include the Agency’s unilateral implementation of the new CBA on May 1, 2017.  Sometime after        November 14, 2017, the Union withdrew this              ULP charge.

    

   The issues as framed by the Arbitrator were whether the Agency violated:  (1) the Statute or Agency regulation by unilaterally implementing the new CBA, and (2) the parties’ agreement by failing to schedule twenty hours per week of official time for the Union president.  The Arbitrator considered at length the parties’ bargaining history over 2016 and 2017 and found that the Agency did not violate the Statute, Agency regulation, or the parties’ agreement by unilaterally implementing the new CBA or failing to schedule    twenty hours per week of official time for the Union president.  The Arbitrator concluded that the Union had waived its right to bargain over the new CBA, the       new CBA was the agreement in effect, and the new CBA did not provide for twenty hours per week of official time for the Union president.

    

   On, March 18, 2019, the Union filed exceptions to the Arbitrator’s award.  On April 18, 2019, the Agency filed its opposition to the Union’s exceptions.

    

3. Analysis and Conclusion:  The grievance is barred by § 7116(d) of the Statute.^[7]

    

   Neither party challenged the arbitrability of the grievance;^[8] however, an award cannot stand if the arbitrator lacked jurisdiction to resolve the grievance in the first place.^[9]  Furthermore, the Authority can consider jurisdictional issues sua sponte.^[10]  Therefore, we consider whether the grievance is barred by the earlier-filed ULP charge in accordance with § 7116(d) of the Statute.

   Section 7116(d) provides that “issues [may] be raised under a grievance procedure . . . or as a [ULP] under this section, but not under both procedures.”^[11]  For the purposes of § 7116(d), an earlier-filed ULP charge will bar a grievance if the earlier filed charge concerns the same issue.^[12]

    

   To determine whether the issues involved in a ULP charge and a grievance are the same, the Authority looks at whether:  (1) the ULP charge arose from the same set of factual circumstances as the grievance; and (2) the theories advanced in support of the ULP charge and the grievance were substantially similar.^[13]

    

   Here, the Union’s earlier-filed ULP charge alleged that the Agency violated the Statute by notifying the Union of its intention to implement a new CBA on May 1, 2017, and refusing to bargain with the Union over the new CBA.^[14]   The Union’s later-filed grievance alleged that the Agency violated the parties’ 1994 CBA by failing to schedule the Union president for           twenty hours of official time per week for the duty period of May 2017—the first duty period for which the         new CBA governed granting official time.^[15]  Therefore, to decide the grievance, the Arbitrator had to consider and make factual findings about the  bargaining history of the parties that led to the implementation of the            new CBA.  Thus, the ULP charge and the grievance arose from the same set of factual circumstances—the Agency’s implementation of the new CBA.^[16]

    

    

    

    

    

    

    

    

   Further, the ULP charge and the grievance rely on substantially similar theories—that the Union did not waive its right to bargain the new CBA under the Statute, and, therefore, the 1994 CBA still governed.^[17]  The Authority has held that election-of-forum provisions were intended to prevent unnecessary or redundant filings on related, similar, or same matters.^[18]  Both the ULP charge and the grievance required the fact-finder to determine whether the new CBA governs the parties’ relationship.^[19]  Furthermore, the Authority has stated that it            “cannot simply turn a blind eye when parties, through carefully crafted pleadings, try to avoid the § 7116(d) bar in order to get two bites of the proverbial apple.”^[20]  

    

   In our opinion, this is what the Union’s grievance, alleging that the denial of official time was in violation of the 1994 CBA, attempts to do, namely bring the same issue through the negotiated grievance procedure as it charged as a ULP                                  (the unilateral imposition of a new CBA).  Therefore, we find that the Union’s earlier-filed ULP charge and the grievance raise the same issue.^[21]

    

   That the Union now asserts that it withdrew the ULP charge to convince the Agency to process the grievance^[22] is of no consequence.  The Authority looks to when a ULP charge is filed to determine if an issue has been raised for the purposes of § 7116(d).^[23]  And the Authority has consistently held that an issue is raised for purposes of § 7116(d) upon the filing of a ULP charge, even if that charge is subsequently withdrawn.^[24]  Here, the Union filed the ULP charge on March 27, 2017, alleging the Agency violated the Statute with its notice of its intention to unilaterally implement the new CBA.^[25]  As such, the Union raised the issue in the earlier-filed ULP, even though it later withdrew the charge.

    

   Because the issue in the earlier-filed ULP charge and the grievance is the same and the issue was raised in the earlier-filed ULP charge, the grievance is barred under § 7116(d) of the Statute.  Accordingly, we vacate the award because the Arbitrator lacked jurisdiction to address the grievance.

    

4. Order

    

   We vacate the award.

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

   Member DuBester, dissenting:

    

   Given the unique circumstances of this case,      I would not find that the grievance is barred by § 7116(d) of the Federal Service Labor-Management Relations Statute.1  Accordingly, I would consider the Union’s exceptions to the Arbitrator’s award.