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57 FLRA No. 87
AFGE, Local 3529 and U.S. Dept. of Defense, Defense Contract Audit Agency, Central Region Irving, Texas (Barnard, Arbitrator), 0-AR-3365 (Decided September 20, 2001)
The Arbitrator denied the Union's grievance alleging that the Agency violated the parties' agreement and committed an unfair labor practice (ULP) under § 7116(a)(1) and (5) of the Statute by unilaterally changing a condition of employment without bargaining with the Union. In coming to his conclusion, the Arbitrator held that the Agency did not violate the parties' agreement, but also held that it was not within his authority to resolve the Union's statutory ULP claim. The Authority remanded the case to the parties for resubmission to the Arbitrator.
The Authority concluded that a remand was necessary in order to determine whether the Union properly submitted a statutory ULP claim to the Arbitrator. Arbitrators have authority to resolve statutory ULP claims provided: (1) the parties have not agreed to exclude ULPs from the scope of the negotiated grievance procedure; and (2) the issue of whether the agency committed ULPs in violation of the Statute has been properly submitted to arbitration. The Authority explained that when a grievance under § 7121 of the Statute involves an alleged ULP, the arbitrator must apply the same standards and burdens that would be applied by an administrative law judge in a ULP proceeding under § 7118.
In a grievance alleging a ULP by an agency, the Union bears the burden of proving the elements of the alleged ULP by a preponderance of the evidence. As in other arbitration cases, including those where violations of law are alleged, the Authority defers to an arbitrator's findings of fact. Here, the Authority found that there was no reason to believe that statutory ULPs were excluded from the scope of the parties' negotiated grievance procedure. As a result, if a statutory ULP claim was properly before the Arbitrator, he had authority to resolve it.