Department of Labor and American Federation of Government Employees, Local 12, 0-AR-3436, September 5, 2003, 59 FLRA No. 21.

FLRA turned down the agency's claim that an arbitration award sustaining in part a union grievance challenging the agency's refusal to schedule certain cases for arbitration, violated §7116(d)'s ban on two bites at the apple, because the union had earlier filed a ULP charge (subsequently dismissed by the Regional Director) on the same matter. Although the factual predicate of the grievance was the same as the factual predicate of the ULP, the legal theories were different. "[T]he Authority has drawn a clear distinction between legal theories supporting allegations of statutory violations and allegations of contract violations, finding that the theories are not substantially similar for purposes of §7116(d)."

The agency, in an attempt to reduce the backlog of cases scheduled for arbitration, refused to schedule 9 cases unless the union agreed to schedule other cases in the backlog. The union refused and filed a ULP, claiming the agency had repudiated the agreement on the scheduling of cases. The Regional Director found no repudiation and declined to issue a complaint.

The union then filed a grievance that was referred to arbitration. The arbitrator found that the grievance wasn't barred by §7116(d). On the merits, he found that (1) the union improperly insisted on the right to unilaterally schedule grievances without the agency's agreement and (2) the agency violated the parties' past practice by refusing to schedule any new cases until all cases already pending were scheduled and by insisting on scheduling cases in the order in which arbitration was invoked.

The agency filed exceptions in which it claimed, among other things, the award violated §7116(d). FLRA rejected the agency's claim that §7116(d) was violated. Although the factual predicate was the same in the ULP and the grievance, the legal theories were different. In the ULP the legal theory was that, by failing to cooperate, the agency repudiated the agreement in violation of §7116(a)(1) and (5). In the grievance, the legal theory was that there was a violation of the collective bargaining agreement (CBA) and/or a past practice.

FLRA noted that it had "drawn a clear distinction between legal theories supporting allegations of statutory violations and allegations of contract violations, finding that the theories are not substantially similar for purposes of §7116(d)." FLRA added that '[i]nsofar as previous Authority precedent is inconsistent with this conclusion, it will no longer be followed."

Member Armendariz dissented: "Inasmuch as the legal theories in both proceedings depend on the same alleged contract violation, I believe that the legal theories are substantially similar for purposes of applying the §7116(d) bar."