[ v40 p334 ]
40:0334(32)AR
The decision of the Authority follows:
40 FLRA No. 32
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator D. L. Howell 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 did not file an opposition to the Union's exception.
The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement by failing to allow bargaining unit employees to go to the Union's office for representational purposes. The Arbitrator determined that section 7116(d) of the Statute barred him from hearing the grievance because the issue raised in the grievance was the same as the issue raised in an earlier-filed unfair labor practice (ULP) charge.(2) The Union contends that the grievance and the ULP charge involve different issues.
For the following reasons, we find that we are unable to determine from the record whether section 7116(d) bars the grievance in this case. Accordingly, we will set aside the award and remand the case to the parties to request that an arbitrator mutually agreed to by the parties make findings consistent with our decision.
II. Background and Arbitrator's Award
On December 12, 1989, the Union filed a ULP charge stating, in part, that
on/or about the 6 November 1989, and continu[ing] thereafter [the Agency] violated the Union's Contract Agreement, by . . . . refus[ing] to release employees and give them the opportunity to come to the Union Office, when there [are] matters that need the attention of the president of the Local[.]
Arbitrator's Award at 4. By letter to the Union's President dated February 27, 1990, the Regional Director of the Authority's Atlanta Region stated that pursuant to a telephone conversation with the Union's agent on February 22, 1990, the ULP charge was being withdrawn. The Union states that the parties reached a settlement agreement and that, in a letter dated April 26, 1990, the Union was informed by the Agency that its "managers and supervisors will continue to recognize" the Union's designated representatives. Exceptions, Enclosure IV. According to the Union, it "had no problems" relating to this matter for approximately 2 months. Exceptions at 1.
On June 22, 1990, the Union filed a grievance stating, in part, that the Agency violated the parties' agreement by "disallow[ing] employees covered by the bargaining unit, to come to the Union office for representational purposes." Id. at 5. The Agency stated that the grievance was barred by section 7116(d) of the Statute because a ULP charge had previously been filed on the same issue. Accordingly, the Agency denied the grievance. The grievance was subsequently submitted to arbitration.
The parties agreed at the arbitration hearing that before ruling on the merits of the case, the Arbitrator was to determine the following issue: "Is the subject grievance dated 22 June 1990 arbitrable?" Id. at 1.
The Agency argued before the Arbitrator that the Union raised the same issue in its ULP charge and that, under section 7116(d), "raising the subject issue as an unfair labor practice with the FLRA negates the filing of a grievance on that same issue." Id. at 5. The Agency further argued that section 7116(d) uses the word "raised," not "adjudicated," and that, "therefore, the withdrawal by the Union of the unfair labor practice charge with the FLRA does not change the fact that the Union selected that option, not the grievance procedure[,] in processing the issue." Id.
The Union argued before the Arbitrator that "the unfair labor practice charge was not adjudicated by the FLRA" and that "the FLRA agent stated that a withdrawal of the charge by the Union 'would not keep the Union from filing a grievance later on.'" Id. at 6. The Union also argued that "the subject grievance was filed later in the year[.]" Id.
At the arbitration hearing, the parties agreed that the Arbitrator should contact the Regional Director of the Authority's Atlanta Region to determine whether "a grievance could be filed on the same issue if an unfair labor practice charge were withdrawn." Id. The Arbitrator was told by the Regional Director that "it was not the policy of the FLRA to state that 'a grievance could be filed on the same issue if an unfair labor practice charge was withdrawn before adjudication.'" Id.
The Arbitrator found that the "present grievance appears plainly to be an attempt to reinstate the former issue in the unfair labor practice charge which had already been withdrawn from the FLRA by the Union." Id. at 8. The Arbitrator noted that filing a ULP charge "does not bar the Union from filing a grievance at some future date if it is felt that a provision of the contract has been subsequently violated by the Agency." Id. at 7-8. However, the Arbitrator noted that "any future grievance claiming a contract violation would have to be so specifically stated to distinguish it from the withdrawn unfair labor practice charge" and that in "the subject 22 June 1990 grievance this was not done." Id. at 8. As he found that the "record does not support any distinction between the issues on the subject grievance and the previous unfair labor practice charge[,]" the Arbitrator concluded that the grievance was not arbitrable. Id.
III. Union's Exception
The Union disputes the Arbitrator's finding that the grievance and the ULP charge present the same issue within the meaning of section 7116(d) of the Statute. The Union notes that the problems cited in the ULP charge and the grievance are "similar in nature," but contends that "the events are covered under two different time span[s]." Exception at 2. Specifically, the Union notes that the ULP charge was filed in December, 1989 and withdrawn on February 22, 1990, while "in June of 1990," employees and representatives were told by management officials that they "would not be released from duties for [the] purpose of coming to the Union Office to deal with representational functions[.]" Id. at 1. Because the "set of situations" from which the grievance arises "began some two (2) months after the settlement arising from the ULP," the Union argues that "these now were a new set of violations, and that the Union should have the right and the option to make another filing[.]" Id. at 2.
The Union further argues that upholding the Arbitrator's finding as to section 7116(d) of the Statute would mean that "neither party at anytime in the future would have the right to file any charge, based on the fact that sometime in the past a ruling, withdrawal, or settlement was rendered for a particular situation." Id.
IV. Analysis and Conclusions
For the following reasons, we find that we are unable to determine from the record whether section 7116(d) of the Statute bars the grievance in this case.
Section 7116(d) of the Statute 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. For a grievance to be precluded under section 7116(d) by an earlier-filed unfair labor practice charge, all of the following conditions must be met: (1) the issue which is the subject matter of the grievance must be the same as the issue which is the subject matter of the unfair labor practice; (2) such issue must have been earlier raised under the unfair labor practice procedures; and (3) the selection of the unfair labor practice procedures must have been in the discretion of the aggrieved party. See, for example, U.S. Department of Defense, Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, Local 2317, 37 FLRA 1268, 1272 (1990) (Marine Corps Logistics Base); and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II and American Federation of Government Employees, Local 1760, 36 FLRA 448, 451 (1990).
The Arbitrator found that the "record does not support any distinction between the issues on the subject grievance and the previous unfair labor practice charge; therefore, the 22 June 1990 grievance is not arbitrable." Arbitrator's Award at 8.
In determining whether the grievance and the ULP charge involve the same issue, the Authority will look at "whether the ULP charge and the grievance arose from the same set of factual circumstances and whether the theories advanced in support of the ULP charge and the grievance are substantially similar." Marine Corps Logistics Base, 37 FLRA at 1272. See U.S. Department of Veterans Affairs; and Overseas Education Association v. FLRA, 824 F.2d 61, 72 (D.C. Cir. 1987) (OEA), reversing and remanding sub nom. Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA 1001 (1985), decision on remand, 29 FLRA 1225 (1987).
By stating that "any future grievance claiming a contract violation would have to be so specifically stated to distinguish it from the withdrawn unfair labor practice charge" and that the "record does not support any distinction between the issues on the subject grievance and the previous unfair labor practice charge[,]" the Arbitrator appears to be finding that the theories advanced in both the ULP charge and the grievance were the same. Arbitrator's Award at 8. However, in our view, the Arbitrator made no specific findings as to the factual circumstances surrounding the grievance and the ULP charge. That is, the record does not show whether the grievance and the ULP charge arose from the same occurrence or set of facts. See Marine Corps Logistics Base and OEA. In this regard, we note that the Union claims that the facts leading to the grievance arose in June 1990, whereas the facts leading to the ULP charge arose before December 1989. The Agency disputed those claims before the Arbitrator.
We cannot determine from the record before us the factual circumstances surrounding the grievance or the ULP charge. Specifically, there has been no finding made with regard to the Union's claim that the facts leading to the grievance arose in June 1990, 2 months after the settlement arising from the ULP charge and well after the events leading to the ULP charge of December 1989. Therefore, we are unable to determine whether the same issue was presented in both proceedings within the meaning of section 7116(d). Because the Arbitrator did not make the necessary factual findings and the record does not provide the factual information necessary for the Authority to determine whether the same issue was presented in both proceedings within the meaning of section 7116(d) of the Statute, we will remand the case to the parties to request that an arbitrator mutually agreed to by the parties make findings consistent with this decision.
Accordingly, to find that the ULP charge and the grievance present the same issue within the meaning of section 7116(d), the arbitrator must determine that the ULP charge and the grievance arose from the same set of factual circumstances and that the theories advanced in support of the ULP charge and the grievance are substantially similar. Should the arbitrator find that the ULP charge and the grievance present the same issue, the arbitrator must then consider the remaining factors set forth previously before finding that section 7116(d) bars the grievance in this case. Specifically, the arbitrator would have to consider: (1) whether the issue in the grievance had been earlier raised under the ULP procedures; and (2) whether the aggrieved party in the grievance and the ULP proceedings was the same and, if so, whether the selection of the unfair labor practice procedures was in the discretion of that party. See, for example, Marine Corps Logistics Base, 37 FLRA at 1273-74; U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 36 FLRA 441, 446-47 (1990); and U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, Local 2724, 20 FLRA 743, 745 (1985).
V. Decision
The award is set aside and the case is remanded to the parties to request that an arbitrator mutually agreed to by the parties make findings consistent with this decision.
Opinion of Chairman McKee, dissenting
I dissent in this case because, in my view, the Arbitrator's award is sufficient for the Authority to determine whether the grievance is barred by section 7116(d) of the Statute.
At the outset, I agree with my colleagues that, as relevant here, the grievance is barred if it arose from the same set of factual circumstances as the unfair labor practice charge. That is, whether the general "issue" involved in the unfair labor practice charge and the grievance is the same is not determinative if, in fact, the factual circumstances giving rise to the two proceedings are different.
In my view, however, the Arbitrator recognized and resolved this matter. With regard to the Arbitrator's recognition of the issue, the Arbitrator expressly acknowledged that the earlier-filed ULP charge "does not bar the Union from filing a grievance at some future date if it is felt that a provision of the contract has been subsequently violated by the Agency." Award at 7-8 (emphasis added). Indeed, the Arbitrator stated that an interpretation of section 7116(d) which would hold that a previous ULP would bar "forever any future grievance" would be "grossly unfair" and inconsistent with section 7116(d). Id. at 7 (emphasis in original).
I find it clear, from these statements, that the Arbitrator was well aware that the grievance would not be barred by section 7116(d) if it was based on Agency actions other than those complained of in the ULP charge.
With regard to the Arbitrator's resolution of the issue, the Arbitrator stated that "any future grievance claiming a contract violation would have to be so specifically stated to distinguish it from the . . . unfair labor practice charge." Id. at 8. The Arbitrator then stated that, in the Union's written grievance, "this was not done." Id. An examination of the grievance supports the Arbitrator's statement. Attachment to Exceptions. The Arbitrator concluded, in this regard, that as the "record does not support any distinction between the issues on [sic] the subject grievance and the previous unfair labor practice charge[,]" the grievance was barred. Id.
As I find it plain that the Arbitrator recognized and understood the framework for resolving the Agency's allegation that the grievance was barred by section 7116(d), I find it equally plain that the Arbitrator's award constitutes his determination that the Union failed to demonstrate that the grievance arose from a set of circumstances different from those giving rise to the ULP charge. That is, in my view, the Arbitrator determined that the Union failed to create a record on which to conclude that the grievance was not barred.
The Union does not now allege that it was prevented from entering evidence, or making arguments, that the factual circumstances from which the grievance arose differed from those giving rise to the ULP charge. Further, the Union does not allege that the Arbitrator failed to consider any evidence it offered on this matter. Accordingly, I find no basis on which to conclude that the Arbitrator's award is deficient. Likewise, the record, in my view, is sufficient to resolve the Union's exception. I would, therefore, find that the Union's exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence before him and his conclusions based thereon and, consistent with long-standing Authority precedent, deny the exception.
FOOTNOTES:
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have footnotes.)
1. Chairman McKee's dissenting opinion is set forth after the majority opinion.
2. Section 7116(d) of the Statute provides in relevant part:
[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.