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32 FLRA No. 117

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

LOWRY AIR FORCE BASE

DENVER, COLORADO

Respondent

and 

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1974

Charging Party

Case No. 7-CA-60431
(29 FLRA 566)

 

DECISION AND ORDER ON REMAND

I. Statement of the Case

This case is before the Authority on exceptions filed by the General Counsel to the attached Administrative Law Judge's decision. The Respondent filed an opposition to the exceptions.

In 29 FLRA 566, we remanded this case to the Judge to address the question of whether the unfair labor practice complaint was barred by section 7116(d) of the Federal Service Labor-Management Relations Statute (the Statute) because of an earlier-filed grievance. The Judge found that the complaint in this case was barred by section 7116(d) and recommended that the complaint be dismissed.

We agree with the Judge that the complaint is barred, and we will dismiss the complaint.

II. Background

This case was previously before the Authority on exceptions filed to the Judge's decision dismissing the complaint. The Judge found that the Respondent had not violated section 7116(a)(1) and (5) of the Statute by changing the class of telephone service provided to the Union without bargaining with the Union over the change.

We determined that the Union's class of telephone service could not be terminated without bargaining. However, we remanded the case to the Judge to address the question of whether the unfair labor practice complaint was barred by an earlier-filed grievance. We also directed the Judge, if he determined that the complaint was not barred, to address whether the Respondent bargained as required by the Statute before terminating the Union's class of telephone service.

III. Judge's Decision

On remand, the case was submitted by the parties to the Judge on a stipulation of facts with briefs. The Judge concluded that the grievance filed by the Union on May 15, 1986, barred the unfair labor practice complaint issued in this case.^(*)

The Judge found that the grievance was filed prior to the unfair labor practice charge and that the filing was in the discretion of the Union, the Charging Party. He also found that the subject matter of the grievance and the subject matter of the unfair labor practice charge were the same. The Judge rejected the General Counsel's argument that the grievance did not bar the unfair labor practice complaint because the grievance was not processed on the merits. The Judge acknowledged that the grievance had been returned by the Respondent to the Union without any action because of the Respondent's assertion that the grievance had been filed with the wrong person. However, the Judge found a bar because there was no showing that "the grievance could not have been perfected if the Union so desired." Judge's Decision at 9. Accordingly, the Judge recommended that the complaint be dismissed.

IV. Positions of the Parties

The General Counsel contends that the Judge erred by finding that the unfair labor practice complaint is barred by section 7116(d) of the Statute. The General Counsel argues that since no action was taken on the merits of the Union's grievance, the grievance does not act as a bar to the complaint under section 7116(d). The General Counsel argues that the purpose and effect of 7116(d) is to prevent relitigation of the same issue after a free choice of remedies has been made by the aggrieved party. Since the May 15 grievance was returned without action and without any decision on the merits, the General Counsel argues that the issue concerning the Union's telephone service was never litigated under the grievance procedure. The General Counsel maintains that this situation is similar to the situation in Federal Aviation Administration, Muskegon Air Traffic Control Tower, 5 A/SLMR 458 (1975), a case decided under Executive Order 11491, where a complaint was found not to be barred by an earlier-filed grievance which had been rejected by management as untimely filed.

The Respondent contends that the General Counsel's position is contrary to the law. It argues that the Authority has consistently held that it is the filing of a grievance or an unfair labor practice charge which exercises the option under section 7116(d). Since there is no dispute that the grievance was filed prior to the charge, it contends that the grievance bars the complaint.

V. Analysis and Conclusion

We agree with the Judge's conclusion that the complaint in this case is barred by the Union's earlier-filed grievance.

Section 7116(d) provides that when in the discretion of the aggrieved party, an issue has been raised under the negotiated grievance procedure, the issue may not subsequently be raised as an unfair labor practice. See Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.), 23 FLRA 475 (1986). In this case, there is no dispute that the subject matter of the grievance and the subject matter of the unfair labor practice are the same. There is also no dispute that the grievance was filed prior to the unfair labor practice charge and that such filing was in the discretion of the Charging Party. The only matter disputed by the General Counsel is whether the issue in this case was "raised" within the meaning of section 7116(d) by the filing of the grievance since the grievance was returned without any action and was not decided on the merits.

An issue is "raised" within the meaning of section 7116(d) at the time of the filing of a grievance or an unfair labor practice charge even if the grievance or charge is not adjudicated on the merits. For example, Headquarters, Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, Local 2429, 17 FLRA 969 (1985). In Los Angeles Air Force Station, the Authority indicated that if the filing of the grievance or the charge is the determinative factor rather than subsequent action on the charge or the grievance, the purpose of the Statute is effectuated because the aggrieved party is assured of its right to make an election of procedures. 17 FLRA at 971. The Authority also explained that recognition of the filing date as the operative factor in the election of procedures under section 7116(d) accords with section 7121(d) and (e) of the Statute. Section 7121(d) and (e) also grants an aggrieved employee an option of raising a matter under various procedures and recognizes the filing date as the determinative factor in when the election of procedures is exercised. Id.

Applying this analysis in this case, we find that the Judge correctly determined that the complaint was barred. Contrary to the General Counsel's argument, the Judge's finding is consistent with the purposes of section 7116(d). Because the Union's May 15 grievance could have been pursued by the Union, we also find that FAA, Muskegon Air Traffic Control Tower, where the grievance was rejected as untimely and could not have been pursued, provides no support for the General Counsel's exception. Therefore, we will dismiss the complaint.

VI. Order

The complaint in Case No. 7-CA-60431 is dismissed.

Issued, Washington, D.C.,

_______________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ In his statement of facts, the Judge stated that the grievance was filed on April 15, 1986, not May 15, 1986. His inadvertent error is corrected.

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