23:0414(60)AR - DOJ, Marshals Service and International Council of US Marshals Service Locals, AFGE -- 1986 FLRAdec AR



[ v23 p414 ]
23:0414(60)AR
The decision of the Authority follows:


 23 FLRA No. 60
 
 U.S. DEPARTMENT OF JUSTICE
 UNITED STATES MARSHALS SERVICE
 Activity
 
 and
 
 INTERNATIONAL COUNCIL OF U.S. 
 MARSHALS SERVICE LOCALS, AFGE
 Union
 
                                            Case No. 0-AR-953
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Seymour Strongin filed by the Department of Justice (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 Union filed an opposition and the Office of Personnel
 Management filed a brief as an amicus curiae.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the suspension of the grievant
 for inattention to duty.  On October 3, 1983, the Activity proposed to
 suspend the grievant for 14 days, and during the advance notice period
 of the proposed disciplinary action, the grievant on November 10, 1983,
 consulted with an equal employment opportunity (EEO) counselor
 concerning the proposed suspension pursuant to the precomplaint
 procedures of 29 CFR Section 1613.213.  On December 7, 1983, the
 proposed penalty was reduced to a proposed 10-day suspension, and on
 January 23, 1984, the Activity issued a final decision suspending the
 grievant for 7 days.  On February 3, 1984, the grievant filed the
 grievance which was submitted to arbitration protesting that the
 suspension was not for just cause.
 
    In the proceeding before the Arbitrator, the Activity argued that
 because of the contact with the EEO counselor on November 10, 1983, the
 subsequently filed grievance was barred by section 7121(d) of the
 Statute.  /1/ Specifically, the Activity maintained that by consulting
 with the counselor under the precomplaint procedures of 29 CFR Section
 1613.213, the grievant raised the matter of his suspension under the
 statutory EEO complaint procedures.  Consequently, the Activity
 contended that raising the matter subsequently under the negotiated
 grievance procedure was precluded by section 7121(d), which permits an
 employee to raise such a matter under the statutory EEO procedures or
 the negotiated grievance procedure, but not under both.  The Arbitrator
 however determined that the "matter" raised under the negotiated
 grievance procedure was not the same "matter" that the grievant had
 raised under the statutory EEO procedures.  On that basis, the
 Arbitrator ruled that the grievance was not precluded by section 7121(d)
 of the Statute.  On the merits, the Arbitrator set aside the suspension,
 but stated that the Activity may issue the grievant a written reprimand.
 
                              III.  EXCEPTION
 
                              A.  Contentions
 
    In its exception the Agency contends that the grievance was barred
 by, and the award is consequently deficient as contrary to, section
 7121(d) of the Statute.  In support, the Agency essentially argues that
 the matter raised by the grievant under both the statutory and
 negotiated procedures was the same and that such matter was earlier
 raised under the statutory EEO complaint procedures by initiating the
 precomplaint procedures of 29 CFR Section 1613.213.
 
                       B.  Analysis and Conclusions
 
    Section 7121(d) provides that when an employee affected by a
 prohibited personnel practice under section 2302(b)(1) /2/ has raised
 the matter under a statutory procedure, the matter subsequently may not
 be raised as a grievance.  Thus, the elements of section 7121(d), both
 of which must attach in order for a grievance to be precluded, are:  (1)
 the matter which is the subject of the grievance is the same matter
 which is the subject of the action initiated under the statutory
 procedure, and (2) such matter was earlier raised by the employee timely
 initiating an action under the statutory procedure.
 
    In this case, without deciding whether the matters raised under the
 statutory and negotiated procedures were the same, the Authority
 concludes that the grievance was filed before the grievant initiated the
 action under the statutory EEO complaint procedures and that therefore
 the grievance was not precluded by section 7121(d) of the Statute by the
 grievant's previous contact with and EEO counselor.
 
    Section 7121(d) provides with respect to grievances that the employee
 shall be deemed to have exercised the option to raise the matter under
 the negotiated grievance procedure when the employee timely files a
 grievance in writing in accordance with the provisions of the negotiated
 grievance procedure.  However, with respect to statutory procedures,
 section 7121(d) merely provides that the option is exercised at the time
 the employee timely initiates an action under the applicable statutory
 procedure.  In addition, 29 CFR part 1613, governing equal employment
 opportunity in the Federal government, does not specify when a matter of
 discrimination under section 717 of the Civil Rights Act of 1964 is
 raised under the statutory EEO complaint procedures or when an action is
 initiated under those procedures.  /3/
 
    For the reasons that follow, we conclude that under the provisions of
 section 7121(d) of the Statute, a grievance timely filed in writing in
 accordance with the negotiated grievance procedure is only precluded or
 barred by the grievant having earlier raised the same matter by the
 timely filing of a formal written complaint in accordance with 29 CFR
 Section 1613.214.  Contrary to the argument of the Agency, consultation
 with an EEO counselor pursuant to the precomplaint process of 29 CFR
 Section 1613.213 does not preclude the subsequent filing of a grievance.
 
    One of the primary purposes of section 7121(d) is to preclude
 litigation of the same matter under both the applicable statutory
 procedure and the negotiated grievance procedure.  This purpose is not
 served by having grievances filed under the negotiated grievance
 procedure precluded or barred by an employee's informal contact with an
 EEO counselor under 29 CFR Section 1613.213.  The precomplaint stage of
 the statutory EEO process is not a formal litigation proceeding.  As
 emphasized by the court in Mertz v. Marsh, 786 F.2d 1578, 1580-81 (11th
 Cir. 1986), in denying attorney fees for services performed during the
 precomplaint process, that stage of the process is different in purpose
 and nature from the proceedings after the filing of a formal written
 complaint under section 1613.214.
 
    Specifically, the court noted that the precomplaint process is
 informal;  the identity of the complainant is confidential;  the claim
 need not be in writing;  the counselor has a duty to give counsel as
 well as to seek a solution on an informal basis;  and if this stage does
 not bring the matter to solution, the aggrieved person must be notified
 of the right to file a complaint of discrimination.  In short, the court
 affirmed for purposes of the statutory provisions authorizing attorney
 fees the "drawing of a line between the ameliatory system of .213 and
 the formal complaint procedure of .214." 786 F.2d at 1581.  We agree
 that the precomplaint process is a predominantly informal, confidential,
 and conciliatory process.  We note in addition that at the conclusion of
 the process nothing precludes an employee from seeking a formal
 resolution of the employee's concern by filing a formal complaint of
 discrimination.  As we have previously indicated, one of the purposes of
 section 7121(d) is to preclude relitigation of a matter previously
 litigated in a fashion binding on all parties.  This purpose is best
 served if, in determining whether an election has occurred under section
 7121(d), the line is drawn between the informal and confidential
 counseling system of section 1613.213 and the litigation proceedings
 commenced by the filing of a formal written complaint under section
 1613.214.
 
    In addition, this determination in our judgment best facilitates the
 settlement of disputes between employees and their employing agencies
 involving conditions of employment.  Certainly, employees contact EEO
 counselors seeking information, advice, and counseling on a wide variety
 of matters and may be advised that there is no basis for a
 discrimination complaint under applicable EEO laws and regulations.
 Under the interpretation of section 7121(d) advanced by the Agency in
 this case, an employee in such circumstances would be precluded from
 raising under the negotiated grievance procedure any matter that was
 discussed with the EEO counselor.  We find that such a result was not
 intended by section 7121(d) and does not promote the purpose of the
 Statute of encouraging the settlement of disputes.
 
    Similarly, this determination is consistent with the provision of 29
 CFR Section 1613.403 specifying when a "mixed case complaint" /4/ is
 filed for purposes of the election between a mixed case complaint or a
 "mixed case appeal" /5/ to the Merit Systems Protection Board.  In this
 situation, which is similar to the election of the statutory EEO
 complaint procedure involved in this case, 29 CFR Section 1613.403
 specifies that the election of the mixed case complaint occurs when the
 formal written complaint is filed pursuant to 29 CFR Section 1613.214.
 
                               IV.  DECISION
 
    Accordingly, for these reasons, the Agency's exception provides no
 basis for finding the award deficient as contrary to section 7121(d) of
 the Statute and the exception is denied.
 
    Issued, Washington, D.C., September 25, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7121(d) of the Statute pertinently provides:
 
          An aggrieved employee affected by a prohibited personnel
       practice under section 2302(b)(1) of this title which also falls
       under the coverage of the negotiated grievance procedure may raise
       the matter under a statutory procedure or the negotiated
       procedure, but not both.  An employee shall be deemed to have
       exercised his option under this subsection to raise the matter
       under either a statutory procedure or the negotiated procedure at
       such time as the employee timely initiates an action under the
       applicable statutory procedure or timely files a grievance in
       writing, in accordance with the p