[ v18 p314 ]
18:0314(40)AR
The decision of the Authority follows:
18 FLRA No. 40
FEDERAL BUREAU OF PRISONS
Agency
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3690
Union
Case No. 0-AR-759
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Lawrence Kanzer filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
The grievance in this case involves the suspension of the grievant,
the local union president, for three days for inattention to duty and
breach of security as a result of a prison inmate having escaped. Two
days after management proposed to suspend the grievant, the national
union council filed an unfair labor practice charge alleging that the
Activity had violated section 7116(a)(1) and (2) of the Statute by
proposing the discipline of a local union president, the grievant,
because the charges were false and without merit and constituted a
reprisal against the grievant for his union activities. /1/ Thereafter,
the Activity decided to suspend the grievant and the grievant filed the
grievance in this case claiming that the suspension was not warranted
and solely contending that instead "management is simply harassing a
union official in an ongoing personal attack because of union
functions." The grievance was not resolved and was submitted to
arbitration at which the Activity claimed that under section 7116(d) of
the Statute, /2/ the grievance was precluded because the same issue had
been earlier raised by the unfair labor practice charge. The Arbitrator
however rejected the Activity's claim finding that it had waived its
right to question the arbitrability of the grievance. On the merits the
Arbitrator determined that the Activity had failed to sustain the
suspension and he ordered the suspension reversed.
As one of its exceptions, the Agency contends that the award is
contrary to section 7116(d) of the Statute. The Authority agrees.
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), 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, the Authority concludes that all elements of section 7116(d)
attached and that consequently the grievance submitted to the Arbitrator
was precluded by the Statute. Specifically, the issue which was the
subject matter of the unfair labor practice charge is the same issue
which was the subject matter of the grievance. See id.; Department of
the Treasury, U.S. Customs Service, Region VIII, San Francisco,
California, 13 FLRA 631 (1984). As noted, the charge alleged that the
Activity had violated section 7116(a)(1) and (2) by proposing the
discipline of the grievant because the charges were false and
constituted a reprisal against the grievant for union activities, and
the grievance alleged that the decision to suspend the grievant was not
warranted because it simply constituted harassment of the grievant for
his union activities. Thus, the Authority finds that the issue raised
both by the charge and the grievance was the same, and it is not
disputed that such issue was earlier raised under the unfair labor
practice procedures by the filing of the charge. Finally, the selection
of the unfair labor practice procedures was in the discretion of the
grievant as the aggrieved party. The charge was filed two days after
the discipline of the grievant was proposed and was clearly on his
behalf as the local union president, and the grievance was not filed by
the grievant until the determination not to issue a complaint was
apparently imminent. In such circumstances the Authority finds that the
filing of the unfair labor practice charge constituted the grievant's
election of the unfair labor practice procedures. See Department of
Defense Dependents Schools at 3.
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. Id. at 4. 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. /3/
Issued, Washington, D.C., May 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ After an investigation the Authority's regional director
determined not to issue a complaint and the appeal from that decision
was denied by the Authority's General Counsel
/2/ Section 7116(d) of the Statute 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.
/3/ In view of this decision, it is not necessary to address the
Agency's other exceptions.