23:0564(78)AR - DOJ, Marshals Service and International Council of U.S. Marshals Service Locals, AFGE -- 1986 FLRAdec AR
[ v23 p564 ]
The decision of the Authority follows:
23 FLRA No. 78 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-977 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Thomas L. Hewitt 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 malicious false statements and for an unexcused absence. On December 28, 1983, the Activity proposed to suspend the grievant for 5 days. On January 3, 1984, the grievant amended a previously filed unfair labor practice charge to claim that the Activity was threatening him with disciplinary action as a reprisal against him for protected activity. On January 4, 1984, he filed a formal complaint under statutory equal employment opportunity (EEO) procedures alleging he had been discriminated against because of his race and age and demanding that he not be suspended as proposed. On March 27, 1984, the Activity issued a final decision suspending the grievant for 5 days. On April 23, 1984, the grievant filed a grievance which was submitted to arbitration protesting that the suspension was discriminatory and not for just cause. In the proceeding before the Arbitrator, the Activity argued that under section 7121(d) of the Statute, /1/ the grievance was barred by the earlier-filed EEO complaint. The Activity also argued that under section 7116(d) of the Statute, the grievance was barred by the earlier-filed amended unfair labor practice charge. The Arbitrator acknowledged that the EEO complaint was filed before the grievance and expressly concerned the suspension action. The Arbitrator found that "(t)he EEO complaint is therefore recognized as the employee's option in this case." However, the Arbitrator further found that the grievant had exercised his option under section 7121(d) only as to the issue of discrimination in the matter. He ruled that the issue of whether the suspension was for just cause had not been raised elsewhere and therefore was not precluded by section 7121(d). He similarly ruled that the issue of just cause in the matter was also not precluded by section 7116(d). On the issue of just cause, the Arbitrator determined that only the unexcused absence charge was sustained and he reduced the suspension to 1 day. III. EXCEPTIONS In its exceptions the Agency contends that the award is contrary to section 7121(d) of the Statute. /2/ Specifically, the Agency argues that the grievance was barred by the grievant's earlier filing of a formal complaint of discrimination under statutory EEO procedures. The Agency maintains that contrary to the finding of the Arbitrator, the matter the grievant elected to raise under the statutory procedure was the matter of his suspension allegedly because of his race and age, a prohibited personnel practice under 5 U.S.C. Section 2302(b)(1). /3/ Thus, the Agency asserts that the raising of the matter of his suspension subsequently under the negotiated grievance procedure was precluded by section 7121(d) which provides the employee an option, but bars use of both procedures. IV. ANALYSIS AND CONCLUSIONS Section 7121(d) effectively provides that when an employee affected by a prohibited personnel practice under section 2302(b)(1) has timely raised the matter under an applicable statutory procedure, the matter subsequently may not be raised as a grievance. In American Federation of Government Employees, Local 3230, AFL-CIO and Equal Employment Opportunity Commission, 22 FLRA No. 44 (1986), the Authority identified the two conditions of section 7121(d) which must be met in order for a grievance to be precluded: 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 we conclude that both of the conditions of section 7121(d) were met and that consequently the matter before the Arbitrator was precluded by the Statute from being raised as a grievance. Specifically, we find in this case that the term "matter" as used in section 7121(d) refers not to the issue or claim of prohibited discrimination, but, rather, to the suspension action. The term "matter" described in section 7121(d) pertains to prohibited personnel practices under section 2302(b)(1). In turn, section 2302(b) describes prohibited personnel practices in terms of "any personnel action" with "personnel action" defined in section 2302(a)(2)(A)(iii) to include a suspension for 14 days or less. Section 2302(b)(1) prohibits any employee who has authority to take, direct others to take, recommend, or approve any personnel action from discriminating with respect to such personnel action authority. Thus, a personnel action is central to the prohibited practice of section 2302(b)(1) and specifically encompasses recommended and approved personnel actions. Accordingly, we find that the matter raised both by the grievance and the formal complaint of discrimination was the suspension, either proposed or final, of the grievant. As noted, the Arbitrator acknowledged that the EEO complaint expressly concerned the suspension action. The complaint expressly referenced the suspension action and the grievant in the complaint expressly requested as corrective action that he not be suspended as proposed. This is in contrast to the situation presented in EEOC, 22 FLRA No. 44. In that case there was no express reference in the EEO complaint to the suspension action over which the grievance was filed and no requested corrective action in the complaint relating to that suspension. Accordingly, we agreed with the arbitrator that the matters raised by the EEO complaint and the grievance in that case were different and denied the exception contending otherwise. In summary, there was an election by the grievant, the aggrieved employee, to raise the matter in this case under the statutory EEO procedures. The Authority has recognized that a primary purpose and effect of election-of-remedy provisions of the Statute is to prevent relitigation of a matter in another forum after a choice of procedures in which to raise the matter has been made by the aggrieved party. See U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA No. 60 (1986). Slip op. at 4. Thus, since it is undisputed that the complaint was filed first, the matter raised by the grievant in his formal EEO complaint was prohibited from being relitigated under the negotiated grievance procedure. Consequently, the grievance before the Arbitrator was precluded by the Statute from consideration. V. DECISION For these reasons, the award is deficient as contrary to section 7121(d) of the Statute and is set aside. /4/ Issued, Washington, D.C., October 7, 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) pertinently provides: (d) 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 provisions of the parties' negotiated procedure, whichever event occurs first. (2) The Agency also contends that the award is contrary to section 7116(d) of the Statute. (3) Section 2302(b)(1) pertinently provides: (b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority -- (1) discriminate for or against any employee or applicant for employment -- (A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16); (B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a)(.) (4) In view of this decision, it is not necessary that we address the Agency's other exception to the award.