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58 FLRA No. 21
U. S. Dept. of Labor, Washington, D.C. and AFGE, Local 12 (Vaughn, Arbitrator) 0-AR-3436 (Decided September 5, 2003)
The Arbitrator found that the grievance was grievable and arbitrable. The Arbitrator sustained in part and denied in part the grievance over the Agency's refusal to schedule certain cases for arbitration. The Authority denied the exceptions.
The Authority noted that its implementing Statute does not permit parties to litigate the same issue under both grievance/arbitration procedures and as an unfair labor practice. Thus, under § 7116(d) of the Statute, issues which can be raised under a grievance procedure may be raised under the grievance procedure or as an unfair labor practice, but not under both procedures. The Authority explained that this policy was established to prevent needless duplicate litigation. In this case, the Authority concluded that both the ULP and the grievance involved the same factual issues for purposes of § 7116(d) and that the Arbitrator's conclusion to the contrary was in error. Additionally, the Authority has held that a ULP charge alleging a statutory violation does not bar, under § 7116(d), a subsequent grievance alleging a contract violation.
The factors applied by the Authority to determine whether a repudiation has occurred are: (1) the nature and scope of the alleged breach of the agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement?). A grievance alleging a breach of the parties' contract does not necessitate an analysis of whether the violation was clear and patent or whether the provision breached goes to the heart of the parties' agreement. In order to establish a contract violation, a (mere) breach of a contract provision must be established. Thus, unlike other situations in which § 7116(d) has been applied, there is inherent similarity between the alleged statutory violation and the contract claim: a breach of a collective bargaining agreement is an element of both.
In this case, the Authority concluded that the award was not deficient as contrary to § 7116(d), and that FAA properly reflects how repudiation and contract violation § 7116(d) cases should be evaluated. The Authority added that insofar as previous Authority precedent is inconsistent with this conclusion, it will no longer be followed.