National Council of Field Labor Locals, American Federation of Government Employees and U.S. Department of Labor (Authority decision, April 23, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. The Authority denied an exception asserting that an earlier unfair labor practice charge barred the grievance.

Plain-English summary

OSHA compliance officers grieved a pilot program that asked them to distribute surveys about inspections. An arbitrator allowed the grievance but denied it on the merits. The Department of Labor argued that an earlier unfair labor practice charge barred the grievance under the rule against raising the same issue through both procedures. The Authority found that the charge concerned a failure to bargain over the program, while the grievance concerned how the program affected employees under their contract. Because the department had not shown that the two raised the same issue, the Authority denied its exception and left the arbitral award in place.

Decision snapshot

• Authority: Election between grievance and unfair labor practice procedures under 5 U.S.C. § 7116(d).
• Outcome: Agency exception denied; arbitrator's denial of the grievance remains in place.
• Key point: An earlier bargaining charge did not bar a separate contract grievance about the program's effects on employees.

Full text (FLRA public release)

[ v17 p655 ]

17:0655(94)AR

The decision of the Authority follows:

17 FLRA No. 94

NATIONAL COUNCIL OF FIELD LABOR
LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Union

and

U.S. DEPARTMENT OF LABOR
Agency

Case No. 0-AR-632

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator William M. Edgett 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 dispute in this matter concerns an experimental program to survey the impressions of representatives of private-sector employers and employees regarding inspections by the Occupational Safety and Health Administration. A grievance was filed by several compliance officers, who conduct the inspections, which claimed that the program was in violation of the parties' collective bargaining agreement. Specifically, it was claimed that implementing the program in only two regions was discriminatory; that the program placed compliance officers in a "compromising and intimidating position"; that the requirement that the compliance officers distribute the survey forms was not in conformance with the position description; and that the program would result in compliance officers being evaluated by non-government persons. The grievance was not resolved and was submitted to arbitration. At arbitration the Agency first claimed that under section 7116(d) of the Statute, /1/ the grievance was barred by an earlier-filed unfair labor practice charge which was ultimately withdrawn. The Arbitrator ruled that the grievance was not barred by the Statute, but on the merits denied the grievance.

In its exception the Agency contends that the grievance was barred by the earlier-filed unfair labor practice charge and that consequently the award is contrary to section 7116(d) of the Statute.

As correctly noted by the Agency, section 7116(d) 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 terms of this case, the Authority concludes that the Agency fails to establish in its exception that the issue raised as an unfair labor practice was the same issue raised in the grievance before the Arbitrator. As acknowledged by the Agency in its exception, the unfair labor practice charge was that the Agency had violated section 7116(a)(1), (5), and (7) of the Statute by failing to bargain over the impact and implementation of the experimental program. As already noted, it was claimed in the grievance that the program as applied violated a number of rights of compliance officer employees under the parties' collective bargaining agreement. The grievance did not address in any manner the failure of the Agency to bargain over the program. In fact, the Agency's objection to the Union's attempt to raise the question of bargaining before the Arbitrator was sustained because the Arbitrator found that it pertained to a matter "which had not been raised by the grievance." Thus, because the grievance does not concern the bargaining rights accorded an exclusive representative under the Statute, which was the issue raised under the unfair labor practice procedures, the earlier-filed unfair labor practice charge has not been shown to preclude the grievance, and therefore no basis is provided for finding the award contrary to section 7116(d) of the Statute. /2/ See, e.g., United States Department of the Treasury, Internal Revenue Service, Dallas District, 13 FLRA 459, 459 n.1 (1983); Internal Revenue Service, Western Region, San Francisco, California, 11 FLRA 655 (1983).

Accordingly, the Agency's exception is denied. Issued, Washington, D.C., April 23, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ 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.

/2/ In view of this decision the Authority need not address, and expresses no opinion on, other contentions of the Agency and findings of the Arbitrator under section 7116(d) of the Statute.