23:0564(78)AR - DOJ, Marshals Service and International Council of U.S. Marshals Service Locals, AFGE -- 1986 FLRAdec AR



[ v23 p564 ]
23:0564(78)AR
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 p