[ v23 p20 ]
23:0020(5)CO
The decision of the Authority follows:
23 FLRA No. 5
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3320
Respondent
and
UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT, REGION VI AND
UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT, REGION VI
SAN ANTONIO AREA OFFICE
Charging Party
Case No. 6-CO-40016
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached Decision of the
Administrative Law Judge. The Respondent (AFGE) filed an opposition to
the General Counsel's exceptions. The complaint alleged that AFGE
violated section 7116(b)(8) of the Federal Service Labor-Management
Relations Statute (the Statute) by its refusal to comply with an
Arbitrator's award. The refusal of AFGE to comply with the Arbitrator's
award is conceded. The issue before the Authority is whether this
proceeding is barred by section 7116(d) and/or section 7118(a)(4)(A) of
the Statute.
II. Facts
A grievance over the posting by AFGE of alleged objectionable
material on its Union bulletin board was filed by the Charging Party
(the Activity) and the matter was eventually submitted to arbitration.
On March 28, 1983, Arbitrator Raymond L. Britton issued his decision and
award on the matter. He sustained the grievance and ordered AFGE "to
remove the objectionable material from the Union bulletin board and to
post a retraction and apology for a period of time equal to the posting
of the letters which are the subject of this grievance."
On April 27, 1983, AFGE filed exceptions to the Arbitrator's award
with the Authority. It did not request a stay of the award. On May 6,
1983, the Authority issued an Order dismissing the exceptions as
untimely filed. U.S. Department of Housing and Urban Development,
Region VI, San Antonio Area, 12 FLRA 39 (1983). On May 11, 1983, the
Activity requested AFGE to comply with the award and by letter dated May
16, 1983, AFGE responded, stating that it was appealing the Authority's
Order.
By letter dated May 17, 1983, the Activity reminded AFGE that it was
in violation of the parties' negotiated agreement, and in non-compliance
with section 7122 of the Statute, by not complying with the arbitration
award. The Activity's letter stated that AFGE should consider the
letter an official grievance for the noted violation. On July 14, 1983,
the Activity requested a panel of arbitrators from the Dallas, Texas
office of the American Arbitration Association (AAA). In its letter to
the AAA, the Activity stated that it was requesting the panel of
arbitrators "so that one may be selected to hear a grievance concerning
a violation of our national labor agreement." It stated further that the
grievance concerned the Union's refusal to comply with Arbitrator
Britton's March 28, 1983 Award. The Activity took no further action on
the grievance.
AFGE filed a request for reconsideration of the Authority's May 6,
1983 Order. On August 3, 1983, the Authority granted the request and
ordered that the case be reopened for consideration on the merits. On
March 6, 1984, the Authoirty issued its decision denying AFGE's
exceptions, on the basis that AFGE failed to establish that the
Arbitrator's award was deficient on any of the grounds set forth in the
Statute. Thereafter, AFGE again refused the Activity's request that
AGFE comply with the arbitration award. On July 19, 1984, the Activity
filed the charge in this proceeding alleging that AFGE violated the
Statute by its failure and refusal to comply with Arbitrator Britton's
March 28, 1983 award.
III. Administrative Law Judge's Decision
The Judge found that under Authority precedent, where there is a
single issue, involving the same parties, section 7116(d) of the Statute
allows an election of remedies; that the election is complete upon
either the filing of a grievance or upon the filing of an unfair labor
practice charge; and that, once the election is made, the aggrieved
party may not thereafter elect to proceed under the other procedure. In
support of this finding, the Judge cited several Authority decisions,
including Department of the Treasury, U.S. Customs Service, Region VIII,
San Francisco, California, 13 FLRA 631 (1984); Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland, 18
FLRA 855 (1985); and Federal Bureau of Prisons, 18 FLRA 314 (1985).
The Judge rejected the General Counsel's argument that the May 17,
1983 grievance was not a bar to this proceeding. He found that the
Activity made its election to pursue the grievance procedure with full
knowledge that AFGE was appealing the Authority's Order finding that
AFGE's exceptions were untimely. He found further that the Authority's
rescission of its Order did not resolve the underlying dispute of
non-compliance alleged in the grievance and did not render the grievance
moot. The Judge found that if the Activity had proceeded with the
grievance to arbitration, the arbitrator could have ruled on the effect
on the grievance proceeding of the Authority's decision to entertain
AFGE's exceptions on the merits. Accordingly, he concluded that section
7116(d) precluded the proceeding in this case. He thus found it
unneccessary also to resolve whether this proceeding was precluded by
section 7118(a)(4)(A) of the Statute.
IV. Positions of the Parties
The General Counsel asserts in its exceptions that the Judge's
interpretation of section 7116(d) of the Statute was in error. It
argues that the Authority's rescission of its May 6, 1983 Order in 12
FLRA 39 returned the parties to the positions they were in prior to that
Order, and rendered the Activity's May 17, 1983 grievance a nullity.
Thus, it argues, the grievance did not bar this unfair labor practice
proceeding.
AFGE asserts in its opposition to the General Counsel's exceptions
that the Judge was correct. That is, the Authority's reconsideration of
its dismissal of exceptions had no practical or legal effect upon the
election of the grievance procedure by the Activity. It argues that
there is no dispute that the Activity chose to raise the enforcement
issue in a grievance, and that the Activity's choice barred it from
filing an unfair labor practice charge. Therefore, it asserts that the
General Counsel's exceptions are without merit and the complaint should
be dismissed.
V. Analysis
In agreement with the judge and based on his rationale, except as
noted below, /1/ we find that the Authority's reopening of AFGE's
exceptions to Arbitrator Birtton's award for consideration of the
exceptions' merits did not nullify the Activity's prior grievance
election. It is undisputed that the Activity was aware of the Union's
intention to appeal the Authority's May 6, 1983 Order when it chose to
file a grievance on May 17, 1983, and that the Activity knew that the
Union had filed a request for reconsideration with the Authority when it
requested a panel of arbitrators from the AAA in July 1983. Further, as
the Judge found, the Activity's pursuit of the grievance was not voided
by the Authority's later decision to consider AFGE's exceptions on the
merits, since an arbitrator could have proceeded to decide all issues
concerning the Activity's grievance under the terms of the parties'
agreement. Thus, the Authority finds that the Activity's election, on
May 17, 1983, to pursue enforcement or Arbitrator Britton's March 28,
1983 award through the parties' negotiated grievance procedure barred it
under section 7116(d) of the Statute from pursuing the same matter under
the unfair labor practice procedures of the Statute.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and affirms those rulings. The authority has considered the
Judge's Decision, the General Counsel's exceptions, the Respondent's
opposition to the exceptions, the positions of the parties and the
entire record, and adopts the Judge's findings, conclusions and
recommended dismissal of the complaint. We therefore conclude that this
proceeding is barred by section 7116(d) of the Statute and shall dismiss
the complaint. /2/
ORDER
IT IS ORDERED that the complaint in Case No. 6-CO-40016 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 11, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CO-40016
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3320
Respondent
and
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT,
REGION VI, AND UNITED STATES
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, REGION VI, SAN
ANTONIO AREA OFFICE
Charging Party
Steven M. Angel, Esquire
For the Respondent
Susan E. Jelen, Esquire
For the General Counsel
Before: William B. Devaney
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /3/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns the refusal of
Respondent, American Federation of Government Employees, AFL-CIO, Local
3320 (hereinafter also referred to as "Local 3320"), to comply with an
Arbitration Award. The consistent and adament refusal of Local 3320 to
comply with the arbitration award is both conceded and firmly
established by the record. The sole issue is whether this proceeding is
barred by: a) Section 16(d); and/or b) Section 18(a)(4)(A). For
reasons more fully set forth hereinafter, I conclude that this
proceeding is barred by Section 16(d) of the Statute. In view of my
conclusion that this proceeding is barred by the Charging Party's prior
election of the grievance procedure, it is unnecessary to reach, and I
specifically do not decide, the further issue as to whether the charge
was untimely within the meaning of Section 18(a)(4)(A) of the Statute.
This matter was initiated by a charge filed on July 19, 1984 (G.C.
Exh. 1(a)) which alleged violations of Sections 16(b)(5) and (8) of the
Statute as the result of Local 3320's refusal to comply with the
Arbitrator's Decision of March 28, 1983. A first Amended charge was
filed on January 11, 1985 (G.C. Exh. 1(d)), which alleged violation on
Section 16(b)(5) only. The Complaint and Notice of Hearing issued on
January 18, 1985 (G.C. Exh. 1(g) and set the Hearing for February 13,
1985. Subsequently, initially at the request of Local 3320 the hearing
was rescheduled for April 9, 1985 (G.C. Exh. 1(h)); at the request of
the General Counsel the hearing was rescheduled for May 21, 1985 (G.C.
Exh. 1 (q)); and further at the request of General Counsel on May 21,
1985, was indefinitely postponed (G.C. Exh. 1(t)). By Order dated
October 25, 1985, this matter was rescheduled for hearing on December 5,
1985, and pursuant thereto a hearing was duly held on December 5, 1985,
in San Antonio, Texas, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
involved, and were afforded the opportunity to present oral argument,
which each party waived. At the conclusion of the hearing January 6,
1986, was fixed as the date for mailing post-hearing briefs, which time
was subsequently extended, upon timely motion of the General Counsel to
which Respondent did not object, to January 13, 1986. General Counsel
and Respondent each timely mailed an excellent brief, received on, or
before, January 14, 1986, which have been carefully considered. Upon
the entire record, I make the following findings and conclusions:
Findings and Conclusions
1. The United States Department of Housing and Urban Development
(HUD) and the American Federation of Government Employees, AFL-CIO
(AFGE) are parties to a collective bargaining agreement which covers
both professional and non-professional employees. The current
collective bargaining agreement was effective November 7, 1983 (G.C.
Exh. 3). The previous collective bargaining agreement was effective
from November 10, 1979, until replaced by the current agreement (G.C.
Exh. 2). Local 3320 is the local representative for AFGE at HUD's San
Antonio Area Office.
2. On May 25, 1982, the Activity filed a grievance against Local
3320 alleging that Local 3320 had violated section 8.01(2) of the
parties' collective bargaining agreement (G.C. Exh. 2) by the posting of
certain letters. The grievance was processed through the parties'
negotiated grievance procedure; and arbitration hearing was held on
December 1, 1982; and, on March 28, 1983, Arbitrator Raymond L. Britton
issued his decision and award, AAA Case No. 7130020082 (G.C. Exh. 5).
The Arbitrator sustained the grievance and ordered Local 3320:
". . . to remove the objectionable material from the Union
bulletin board and to post a retraction and apology for a period
of time equal to the posting of the letters which are the subject
of this grievance." (G.C. Exh. 5, p. 18).
On April 27, 1983, Local 3320 filed exceptions to the decision of the
arbitrator with the Authority (G.C. Exh. 6). Local 3320 did not request
a stay of the arbitration award. On May 6, 1983, the Authority issued
an Order dismissing the exceptions as untimely filed. 12 FLRA No. 10,
12 FLRA 39 (1983) (G.C. Exh. 8).
3. On May 11, 1983, the Activity requested that Local 3320 comply
with the arbitration award (G.C. Exh. 9) and by letter dated May 16,
1983, Local 3320 responded that it was, "appealing 12 FLRA No. 10" (G.C.
Exh. 10).
4. By letter dated May 17, 1983, the Activity reminded Local 3320
that it was, ". . . in violation of Article 23, Section 23.09 Award, and
in addition, in non-compliance with 5 USC Section 7122 by not complying
with the Arbitrator's Award . . ." (G.C. Exh. 11). The Activity's
letter of May 17, 1983, further stated:
"This is to inform you that this should be considered by you an
official grievance for the above noted violation." (G.C. Exh. 11).
By letter dated July 14, 1983, to the Assistant Regional Director,
American Arbitration Association, Dallas, Texas, the agency requested a
panel of arbitrators, ". . . so that one may be selected to hear a
grievance concerning a violation of our national labor agreement . . ."
(G.C. Exh. 12). The Activity further stated,
"The grievance concerns a violation of the HUD-AFGE labor
agreement, Article 23, Section 23.09. Management contends that
the union violated the contract by its refusal to comply with
Arbitrator Britton's Award of March 28, 1983, AAA Case No. 71 30
0200 80 . . ." (G.C. Exh. 12).
The Activity's grievance was never withdrawn, although the activity
took no action to select an arbitrator from the panel submitted by the
American Arbitration Association (see, G.C. Exh. 21).
5. Local 3320 having filed a request for reconsideration of the
Authority's Order of May 6, 1983, the Authority by Order dated August 3,
1983, rescinded its Order of May 6, 1983, and ordered the ". . . case
reopened for consideration on the merits." (G.C. Exh. 13).
6. On March 6, 1984, the Authority issued its decision denying Local
3320's exceptions (G.C. Exh. 15). By letter dated March 16, 1984, the
Activity again requested that Local 3320 comply with the arbitration
award (G.C. Exh. 16); by memorandum dated March 23, 1984, Local 3320
responded and stated, ". . . we are going to court on FLRA decision . .
. Also . . . the time frame for you to appeal my non-compliance has
expired. Instead of following the proper appeal procedures to the FLRA,
this office chose to ask for a second arbitrator, and in doing so
allowed the time frame to run out. Therefore, your (sic) out of luck."
(G.C. Exh. 17). By letter dated July 2, 1984, the Activity again
requested that Local 3320 comply with the arbitration award (G.C. Exh
18); and by memorandum dated July 10, 1984, Local 3320 refused to
comply with the award (G.C. Exh. 19).
7. On July 19, 1984, the Activity filed a charge (G.C. Exh. 1(a))
and on January 11, 1985, a first Amended charge (G.C. Exh. 1(d)), each
of which alleged that Local 3320 violated the Statute by its failure and
refusal to comply with the Arbitrator's decision of March 28, 1983.
I. Section 16(d)
Section 16(d) of the Statute provides, in relevant part, as follows:
". . . 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." (5 U.S.C. Section
7116(d)).
Where there is a single issue, here the failure and refusal to comply
with an arbitration award, involving the same parties, it has
consistently been held that Section 16(d) requires an election of
remedies; that the election is complete upon either the filing of a
grievance or upon the filing of an unfair labor practice charge; and
that once the election is made, the aggrieved party may not thereafter
elect to proceed under the other procedure. In Department of the
Treasury, U.S. Customs Service, Region VIII, San Francisco, California,
13 FLRA No. 105, 13 FLRA 631 (1984), the Authority dismissed the
complaint because the issue, which was the subject matter of the
complaint, had, prior to the filing of the charge been the subject
matter of a grievance, i.e., the Respondent's failure to disclose a
crediting plan, notwithstanding that the grievance had not been pursued
through all steps of the grievance procedure. In Department of Justice,
Bureau of Prisons, Federal Correctional Institution, Butner, North
Carolina, 18 FLRA No. 100, 18 FLRA 831 (1985), the Authority held, in
part, that, ". . . section 16(d) . . . does not bar this unfair labor
practice proceeding, based on the finding by the Judge that the charge .
. . was filed . . . prior to the filing of the grievance." 18 FLRA at
832). See, also, Department of the Air Force, Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No.
17, 19 FLRA 169, 170-171 (1985). In Headquarters, Space Division, Los
Angeles Air Force Station, California, 17 FLRA No. 131, 17 FLRA 969
(1985) the Authority denied exceptions to an award of the arbitrator
which had held portions of the grievance were precluded by an
earlier-filed unfair labor practice charge, notwithstanding that the
unfair labor practice charge had been withdrawn. In Federal Bureau of
Prisons, 18 FLRA No. 40, 18 FLRA 314 (1985), the Authority set aside an
arbitration award because of a prior filed unfair labor practice charge,
notwithstanding that the Authority's Regional Director had refused to
issue a complaint and the appeal from that decision had been denied by
the Authority's General Counsel. The Authority stated, in part, as
follows:
"In sum, there was an election in the discretion of the
aggrieved party to raise the issue in this case under the unfair
labor practice procedures. The Authority has recognized that the
clear purpose and effect of section 7116(d) is to prevent
relitigation of an issue in another forum after a choice of
procedures in which to raise the issue has been made by the
aggrieved party . . . Thus, the matter raised by the filing of
the grievance could not be relitigated under the grievance
procedure and consequently the grievance was precluded by the
Statute from consideration by the Arbitrator. For these reasons,
the award is deficient as contrary to section 7116(d) and is set
aside (footnote omitted)" (18 FLRA at 316).
To like effect, see also, Department of Defense Dependents Schools,
Pacific Region, 17 FLRA No. 135, 17 FLRA 1001 (1985). In Department of
Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA No. 50, 12
FLRA 198 (1983), a portion of a consolidated complaint (Case No.
1-CA-588) was dismissed, pursuant to Section 16(d), because of a prior
filed grievance (12 FLRA at 200, n. 5; ALJ decision 12 FLRA at 208).
(Reversed and remanded on other grounds, American Federation of
Government Employees, AFL-CIO, Local 2612 v. Federal Labor Relations
Authority, 739 F. 2d 87 (D.C. Cir. 1984)). In Department of Health and
Human Services, Social Security Administration, Authority dismissed the
complaint, pursuant to Section 16(d), because the subject matter of the
complaint had been raised by a previously filed grievance.
General Counsel states, in part, as follows:
". . . On May 17, 1983, the Activity filed a grievance over the
Union's refusal to comply with the arbitration award. The General
Counsel admits that the May 17, 1983 grievance was filed by the
same aggrieved party and involved the same basic issue, the
Union's refusal to comply with the arbitration award, as the
unfair labor practice charge filed in this case on July 19, 1984.
Under normal circumstances, the grievance would bar the processing
of the subsequent unfair labor practice." (General Counsel's Brief
at p. 9).
However, General Counsel argues that the prior filed grievance in
this case is not a bar because, ". . . the intervening event of the
Authority's August 3, 1983 recision of its earlier May 6, 1983 . .
.mooted the May 17, 1983 grievance." (General Counsel's Brief, p. 9).
General Counsel further argues that, "The Activity considered the
grievance a nullity since the Authority had rescinded its previous
ruling that the exceptions were untimely. The 1983 grievance was
premature as the arbitration award was not considered final and bindling
until the Authority issued its decision on May 6, 1984 . . ." (General
Counsel's Brief, p. 9).
I do not agree that the May 17, 1983, grievance is not a bar to this
proceeding; nor do I agree that Authority's August 3, 1983, recision of
its May 6, 1983, decision that Local 3320's exceptions were untimely
rendered the grievance moot. First, the aggrieved party, the Activity,
in its discretion, made an election to raise the issue, of Local 3320's
failure and refusal to comply with the arbitration award of Marcy 28,
1983, through the grievance procedure. The Activity made this election
with full knowledge (G.C. Exh. 10) that Local 3320 was "appealing 12
FLRA No. 10." As the Authority has consistently held,
". . . the clear purpose and effect of section 7116(d) is to
prevent relitigation of an issue in another forum after a choice
of procedures in which to raise the issue has been made by the
aggrieved party . . ." Federal Bureau of Prisons, supra, 18 FLRA
at 316.
Second, the arbitrator, in his award of March 28, 1983, had resolved
all aspects of the dispute being arbitrated; Local 3320 had failed and
refused to comply with that award; and the Activity's grievance was
based on the premise that Local 3320 was, ". . . in violation of Article
23, Section 23.09 Award . . . by not complying with the Arbitrator's
Award . . ." (G.C. Exh. 11). In its letter requesting a panel or
arbitrators, the Activity further stated, "The grievance concerns
violation of the HUD-AFGE labor agreement, Article 23, Section 23.09.
Management contends that the Union violated the contract by its refusal
to comply with Arbitrator Britton's Award of March 28, 1983 . . ." (G.C.
Exh. 12). At the time of the Activity's election of the grievance
procedure to resolve the dispute, Local 3320's exceptions on May 6,
1983, had been dismissed as untimely (G.C. Exh. 8); but the Authority's
subsequent decision, on August 3, 1983, rescinding that order, i.e., its
determination that Local 3320's exceptions had, in fact, been timely
filed, and ordering the ". . . case reopened for consideration on the
merits." (G.C. Exh. 13) did not resolve the dispute. Local 3320 had not
complied with the Arbitration Award of March 28, 1983, and, because the
underlying dispute had not been resolved, the Activity's grievance was
not rendered moot. Local 74, United Brotherhood of Carpenters & Joiners
of America, AFL v. National Labor Relations Borad, 341 U.S. 707 (1951).
Indeed, on March 6, 1984, the Authority denied Local 3320's exceptions
(G.C. Exh. 15). The Authority's decision, after the Activity's election
of the grievance procedure, to entertain Local 3320's exceptions did not
render the arbitratton case a non-justiciable controversy, Hicklin v.
Coney, 290 U.S. 169 (1933). Quite to the contrary, Article 23, Section
23.09 of the parties' Agreement provided that:
"The arbitrator's award shall be binding on the Parties.
Either party may file exceptions to the award with the Federal
Labor Relations Authority." (G.C. Exh. 2).
Article 23, Section 23.05 of the parties' Agreement provided,
"The arbitrator shall have the authority to make all
grievability and/or arbitrability determinations. Questions of
arbitrability shall be submitted to the arbitrator in writing and
be decided prior to any hearing, unless otherwise mutually agreed
upon." (G.C. Exh. 2).
Pursuant to Article 23, Section 23.05 and 23.09, of the parties'
Agreement, the arbitrator plainly was given full authority to determine
all questions of grievability and/or arbitrability. Presumably, Local
3320 would have raised, as an affirmative defense, the fact that its
exceptions to the Award of March 28, 1983, were pending before the
Authority, and, if the exceptions had not been decided at the time the
matter was submitted to the arbitrator, the arbitrator would have had to
make a decision; but, clearly, the Authority's decision of August 3,
1983, to entertain Local 3320's exceptions, did not render the dispute
submitted to arbitration moot. The arbitrator might have concluded
that, pursuant to the language of Article 23, Section 23.09, pendancy of
exceptions was immaterial to arbitration of the issue of Local 3320's
violation of the contract by virtue of its non-compliance with the Award
of March 28, 1983. Compare, American Federation of Government
Employees, AFL-CIO, Local 3090 v. Federal Labor Relations Authority, 777
F. 2d 751 (D.C. Cir. 1985); or the arbitrator might have proceeded to
arbitration on the issue of Local 3320's breach of contract but deferred
any award pending disposition of Local 3320's exceptions; or the
arbitrator might have proceeded to arbitration on the issue of Local
3320's breach of contract in failing to comply with the Award of March
28, 1983, because Local 3320 had not requested a stay of the Award of
March 28, 1983 (discussed further hereinafter); or the arbitrator might
have deferred arbitration pending disposition of Local 3320's
exceptions; or the arbitrator may have taken other action. The
significance is not what action the arbitrator might have taken, but,
rather, that the Agreement of the parties lodged plenary power in the
arbitrator to decide any question of grievability and/or arbitrability
and that the arbitrator had a wide range of options in determining the
effect, if any, of the Authority's decision to entertain Local 3320's
exceptions.
Third, Local 3320 had not requested a stay of the Arbitrator's Award
of March 28, 1983, and the Regulations of the Authority specifically
provide, in part, that:
". . . the filing of an exception shall not itself operate as a
stay of the award involved in the proceedings." (5 C.F.R. Section
2429.8(a)).
Consequently the Authority's August 3, 1983 determination to
entertain Local 3320's exceptions did not stay the Award of March 28,
1983, and without regard to whether the exceptions were ultimately
sustained or denied (and they were, in fact, denied on March 6, 1984,
G.C. Exh. 15), in the absence of a stay, the parties must comply with
the Award of March 28, 1983, even though the Award was subject to review
by the Authority. American Federation of Government Employees, AFL-CIO,
Local 3090 v. Federal Labor Relations Authority, supra. Stated
otherwise, the arbitrator could have proceeded to arbitration on the
issue of Local's violation of the Agreement by virtue of Local 3320's
failure to comply with the Award of March 28, 1983, because the Award
had not been stayed and Local 3320 was then required to comply with the
Award. Obviously, the Authority's determination on August 3, 1983, to
entertain Local 3320's exceptions did not preclude the arbitrator from
granting effective relief to the aggrieved party, the Activity, and,
therefore, the arbitration was not rendered moot. Newport News
Shipbuilding and Dry Dock Co. v. Schauffler, et al., 305 U.S. 54 (1938);
United States v. Rock Royal Co-op, Inc. et al., 307 U.S. 533 (1939);
National Labor Relations Board v. C.E. Atkins and Co., 331 U.S. 398
(1947); American Federation of Government Employees, AFL-CIO, Local
3090 v. Federal Labor Relations Authority, supra.
Of course, the controlling consideration under Section 16(d) is the
election of remedies. It is conceded that the Activity elected the
grievance procedure on May 17, 1983. Having made that election, it is
immaterial whether that remedy was wise or whether that remedy was
pursued. For reasons set forth above, the Activity's grievance was not
rendered moot by the Authority's subsequent determination to entertain
Local 3320's exceptions.
II. Section 18(a)(4)(A).
In view of my conclusion that this proceeding must be dismissed
pursuant to Section 16(d) of the Statute, it is unnecessary to reach the
further question as to whether this proceeding is, or is not, precluded
by Section 18(a)(4)(A). Although I specifically do not decide whether
the time for filing an unfair labor practice, pursuant to Section
18(a)(4)(A), began to run either from the date of the arbitration award,
here March 28, 1983, to which no stay was requested, or from the initial
refusal to comply with that award, here, May 16, 1983, either date
having been substantially more than six months prior to the date the
charge was filed on July 19, 1984, attention is directed to: a) Section
2429.8(a) of the Authority's Regulations, which provides that the filing
of an exception to an arbitration award ". . . shall not operate as a
stay of the award . . ."; and b) the decision of the United States
Court of Appeals for the District of Columbia Circuit, American
Federation of Government Employees, AFL-CIO v. Federal Labor Relations
Authority, 777 F. 2d 751 (D.C. Cir. 1985), which held that the dismissal
of an unfair labor practice complaint, initiated while exceptions to the
arbitrator's decision were pending before the Authority but as to which
no stay had been requested, was improper.
Conclusion
Having found that this proceeding is barred by Section 16(d) of the
Statute, 5 U.S.C. Section 7116(d), it is recommended that the Authority
adopted the following;
ORDER
The Complaint in Case No. 6-CO-40016 be, and the same is hereby,
dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 17, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) We find it unnecessary to pass upon and specifically do not adopt
the Judge's discussion at page 9 of his Decision concerning the effect
of the Union's failure to request a stay of Arbitrator Britton's award
under section 2429.8 of the Authority's Rules and Regulations.
(2) Based on this conclusion, the Authority finds it unnecessary to
pass upon whether the unfair labor practice charge in this case would
have been timely under section 7118(a)(4)(A) of the Statute, and we do
not adopt the Judge's comments on the matter.
(3) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(b)(8) will be referred to,
simple, as "Section 16(b)(8)."