43:0290(28)AR - - Air Force, HQ, OK City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1991 FLRAdec AR - - v43 p290



[ v43 p290 ]
43:0290(28)AR
The decision of the Authority follows:


43 FLRA No. 28

FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 916
(Union)

0-AR-2175

DECISION

November 25, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Russell C. Neas filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exception.

The grievance concerned an employee's claim that although he performed the work of a Wage Grade (WG) 10 sheet metal mechanic, he was not promoted from the WG-8 level to the WG-10 level. The Arbitrator ruled, among other things, that the grievance was not barred by an equal employment opportunity (EEO) complaint that had been filed earlier by the grievant. The Arbitrator concluded that the Agency violated the parties' agreement by failing to promote the grievant and directed the Agency to promote the grievant to WG-10 retroactive to November 18, 1986, and to pay the grievant backpay.

In its exception, the Agency asserts that the Arbitrator was without jurisdiction to decide this case under section 7121(d) of the Statute because the grievant had filed a formal EEO discrimination complaint on the same matter before the grievance in this case was filed. For the following reasons, we agree with the Agency that the grievant filed a formal EEO complaint on June 20, 1988, that concerned the same matter on which the grievant filed a grievance on January 3, 1990. Accordingly, we will set the award aside because the Arbitrator lacked jurisdiction under section 7121(d) of the Statute to resolve the grievance.

II. Background and Arbitrator's Award

The grievance in this case is one of a series of grievances that have come before the Authority on exceptions to arbitration awards, issued by different arbitrators, naming as parties the same Agency and Union that are named in this case. The grievances concern the failure to promote various wage grade employees who participated in Vocational Technical (Vo-Tech) training. See U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342 (1991); United States Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 886 (1991); U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 680 (1991).

The record in this case establishes that in December 1981, the grievant, a disabled veteran, was hired by the Agency. Sometime during 1985 the grievant completed 880 hours of Vo-Tech training. Upon completion of that training the grievant was promoted from WG-3 to the WG-5 level. In May 1986, he was noncompetitively promoted to the WG-8 level as a sheet metal mechanic. It had been the grievant's understanding that his successful completion of the Vo-Tech training "guaranteed him promotion to WG-10, his target grade, when he reached journeyman[]level proficiency." Award at 7.

The grievant had expected to be promoted noncompetitively to WG-10 in November 1986 when other employees received such a promotion. However, he was not promoted. The record does not indicate when the grievant first inquired as to the status of his promotion. However, when the grievant questioned his immediate supervisor about the reasons for the failure to promote him, he was told that he was not promoted because he had an insufficient balance of annual leave and sick leave and that he was "undependable." Id. at 8.

Sometime during 1987 the grievant became permanently disabled as a result of an on-the-job injury to his arm. He was placed on limited duty and had absences for which he used sick leave. Although the effective date is not in the record, at some point the grievant was reclassified to the position of a WG-4 file clerk because his permanent physical limitations caused the Agency to place him in limited duty status.

When the grievant "failed to get his promotion to WG-10 in November of 1986 he obtained an attorney who advised him . . . to file an EEO discrimination complaint, rather than fil[e] a grievance." Id. On June 20, 1988, the grievant filed an EEO complaint alleging that he had been discriminated against because of his physical handicap. The grievant "lost the case" and "apparently had not intended to take any further action at that time, but later elected to file a grievance claiming promotion to WG-10 and back pay" as part of the series of Union grievances noted above. Id.

The grievance was filed on January 3, 1990, and alleged that the grievant "was doing the work of a WG[-]10 Sheetmetal Mechanic and was never promoted from a WG[-]8. . . . [The grievant] feels that he should have [been] promoted to a WG-10 in May, 1987. [The grievant] has since then been permanently medically restricted[.]" Id. at 9 (quoting grievance). As a remedy, the Union sought backpay at the WG-10 level since May 1987, promotion to WG-10 from May 1987 until the grievant was medically restricted and pay retention at the WG-10 level.

The Agency did not respond to the grievance and the Union filed the grievance at the second step of the grievance procedure. At the second step the Union reiterated its "initial complaint" adding that the grievant "filed a[n] EEO complaint and waited until such finding before filing a grievance over promotion and back pay" and asserting that the "documentation" showed that the grievant's "promotion was withheld due to his leave usage." Id. The Agency's response to the step 2 grievance stated, in pertinent part, that the grievant had earlier charged discrimination based upon a physical handicap and that the parties' agreement and applicable law prohibit such dual filings. The grievance was again denied at the third step and was submitted to arbitration.

The Arbitrator noted that there was a dispute between the parties as to various threshold issues. Because the parties were unable to reach a stipulation, the Arbitrator determined these threshold issues. As relevant here, the Arbitrator framed one of the issues as, "Is the grievance nonarbitrable because of dual filing?" Id. at 11.

The Agency argued to the Arbitrator that Section 6.02a of the parties' agreement "prohibits dual filing of an employee complaint pertaining to a 'prohibited personnel practice[.]'" Id. at 15. Section 6.02a states, in pertinent part:

An employee affected by a prohibited personnel practice under Section 2302(b)(1) of CSRA 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 Section 7121(d) to raise the matter under either a statutory procedure or timely files [sic] a grievance in writing, in accordance with the provisions of the negotiated procedure, whichever event occurs first. * * *

Id. at 3. The Agency argued that the EEO complaint and grievance both concerned the Agency's "failure to promote the grievant to WG-10 due to his undependability and leave usage." Id. at 14. The Agency stated that in both procedures the grievant argued that management applied a policy that employees must have a composite leave balance of 200 hours before being promoted. The Union argued before the Arbitrator that the issues in the two procedures were entirely different, contending that while the Vo-Tech issue is the central issue in the grievance, the EEO complaint concerned discrimination because of a handicap.

The Arbitrator found that section 6.02a "is interpreted to mean that dual filing of essentially identical complaints or issues is prohibited, or conversely, if the complaints or issues are significantly different, there would be no dual filing." Id. at 15. The Arbitrator noted that the issue in the EEO complaint was set forth in the Agency's final decision on that complaint as whether the grievant was "discriminated against based upon alleged physical handicap . . . on May 25, 1988, when [he was] told that [he] could not be promoted to a Sheet Metal Mechanic (Aircraft), WG-3806-10, because of [his] limited duty restrictions." Id. (quoting final Agency decision). The Arbitrator reiterated that the gravamen of the grievance was that the grievant "was doing the work of a WG[-]10 Sheetmetal Mechanic and was never promoted from a WG[-]8. [The grievant] had been thru [sic] the Vo[-][T]ech program prior to being promoted to WG[-]8." Id. at 16 (quoting grievance).

The Arbitrator stated that the grievance contained no reference to discrimination based upon physical handicap and that during the arbitration hearing, the Union never raised the issue of handicap discrimination or claimed that the grievant's complaint involved failing to get promoted for that reason. Rather, the Arbitrator concluded that the grievance was concerned with the alleged Agency "violation of [the grievant's] Vo-Tech contract and the reasons . . . given by the Agency for not promoting [the grievant] upon completion of his Vo-Tech training program." Id. The Arbitrator noted that there was no evidence that the subject of the Vo-Tech contract was even mentioned in the EEO proceedings. Accordingly, the Arbitrator found that the "issues in the two forums may be viewed as similar in that they both grieve nonpromotion, but the similarity ends there. The critical issues are significantly different." Id. The Arbitrator concluded, therefore, that there had been "no dual filing." Id.

The Arbitrator determined the outcome of other threshold issues and found the grievance arbitrable. In the absence of a stipulation by the parties, the Arbitrator framed the issue on the merits as: "Did the Agency improperly fail to promote . . . the grievant, from WG-8 to WG-10? If so, what shall be the remedy?" Id. at 22.

With regard to the merits, the Union argued, among other things, that the Agency had violated various Agency regulations, the parties' master labor agreement and the Veterans Rehabilitation Act by failing to promote the grievant even though he had performed WG-10 work and was fully able to do all the required work. The Union claimed that pursuant to an "unwritten rule" the Agency will not promote an employee who has not accrued 100 hours of annual and sick leave, and that the Agency had termed the grievant to be "undependable" because he did not have the requisite amount of leave. Id. at 23. The Union further argued that the grievant "feels that he has been treated unfairly and being [sic] punished for his injury and filing his claim for compensation." Id. at 24. The Agency claimed before the Arbitrator that it had lawfully denied the promotion based on the grievant's "undependability." Id. at 24. The Agency pointed to the fact that its position had been upheld by the Equal Employment Opportunity Commission (EEOC).

The Arbitrator found that it was undisputed that the grievant had been performing the duties of a WG-10 and was qualified to do so. He concluded that dependability was the sole determining factor in the decision not to promote the grievant, but that "the Agency has no well-defined standard of dependability, and no such policy has been communicated to supervisors, the Union, or employees of the bargaining unit." Id. at 31. He concluded, rather, that the Agency was in fact applying its "100-hour Rule." Id. at 31. He found that the application of the 100-hour rule, which he found has no contractual basis, had been "inconsistent and discriminatory[,]" and that "[a]n employee's right to use the negotiated leave benefits must take precedence over an unwritten rule adopted by some supervisors with no basis in law, contract, regulations or official Agency policy." Id. at 32-33. The Arbitrator found that the Agency had violated an Agency regulation by basing its failure to promote the grievant on his use of approved leave. He further found that the grievant had a right to promotion to WG-10 based on his completion of Vo-Tech training and his achievement of journeyman level proficiency and that the Agency had violated an Agency regulation and the Federal Personnel Manual by failing to do so. The award directed the Agency to promote the grievant to WG-10 "retroactive to November 18, 1986, with back pay plus interest at the rate currently authorized by applicable regulations." Id. at 37.

III. The Agency's Exception

The Agency maintains that the Arbitrator lacked jurisdiction over the grievance under section 7121(d) of the Statute because the grievant had already filed an EEO complaint over the matter.(*) The Agency states that the grievance was filed on January 3, 1990, and that a formal EEO complaint had been filed on June 20, 1988, on the same matter raised in the grievance--the "failure of the Agency to promote the grievant" to WG-10. Exceptions at 3.

The Agency states that the "'matter' which was the subject of [the grievant's] EEO complaint was whether he was discriminated against 'when [he was] told that [he] could not be promoted to a Sheet Metal Mechanic (Aircraft), WG-3806-10, . . .'" Id. at 2 (quoting Award at 14). The Agency notes that after the EEO complaint was resolved in favor of the Agency the Union filed the grievance and "the subject of" the grievance is that the grievant "'was never promoted from a WG[-]8.'" Id. (quoting Award at 16).

Accordingly, the Agency argues that the "matter" complained of was the same in both the grievance and the earlier filed EEO complaint, specifically the Agency's failure to promote the grievant to the WG-10 level.

IV. Analysis and Conclusions

The Statute provides in section 7121(d) that when an employee affected by a prohibited personnel practice under 5 U.S.C. § 2302(b)(1), such as an allegation of discrimination, has raised the matter under a statutory procedure, the employee may not file a written grievance under the negotiated grievance procedure concerning the same matter. For a grievance to be precluded by section 7121(d), two conditions must be met: (1) the matter which is the subject of the grievance must be the same matter which was the subject of the action initiated under the statutory procedure; and (2) such matter must have been earlier raised by the employee timely initiating an action under the statutory procedure. See U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 476, 42 FLRA 813, 817-18 (1991) (HUD) (grievance not arbitrable under section 7121(d) of the Statute because the same matter was central to both the EEO complaint and the grievance even though they resulted from decisions by two different agency officials, at different times and after circumstances in the grievant's office had changed); American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 36 FLRA 212, 215-16 (1990) (Office of Hearings and Appeals, Region II) (award set aside because the matter before the arbitrator was precluded from being raised as a grievance by section 7121(d); the grievant had earlier raised the matter of her suspension as a formal complaint of discrimination under the statutory EEO procedure).

In U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 564 (1986) (U.S. Marshals Service), the Authority held that an EEO complaint filed over a suspension barred a later grievance over the same matter. The Authority discussed in that case what constitutes a "matter" for purposes of section 7121(d) and found that the term refers "not to the issue or claim of prohibited discrimination," but, rather, to the personnel action involved. Id. at 567. The Authority noted that "[t]he term 'matter' described in section 7121(d) pertains to prohibited personnel practices under section 2302(b)(1)." Id. Further, the Authority noted that prohibited personnel practices for purposes of 5 U.S.C. § 2302(b) includes discrimination with respect to any personnel actions defined in section 2302(a). The Authority stated that "a personnel action is central to the prohibited practice of section 2302(b)(1) and specifically encompasses recommended and approved personnel actions." Id. As relevant to the instant case, section 2302(a)(2)(A)(ii) defines a personnel action as "a promotion."

In this case, the grievance filed on January 3, 1990, specifically concerned the grievant's allegation that he was not promoted from WG-8 to WG-10. The grievant asserted in the grievance that he was "doing the work of a WG[-]10 Sheetmetal Mechanic and was never promoted from a WG[-]8." Award at 16. Before the Arbitrator, the Union stressed that he had not been promoted because of the Agency's "100-hour rule," which had led the Agency to incorrectly determine that he was undependable. The Arbitrator discussed the 100-hour rule and the Agency's standard of dependability at length and concluded that the application of the rule to the grievant had been inconsistent and discriminatory and that, therefore, the Agency had violated its regulations by failing to promote the grievant. Id. at 27-35.

Although the record does not include a copy of the EEO complaint, the Arbitrator characterized the "issue" in the EEO action as whether the grievant was discriminated against when he was told that he "could not be promoted to a Sheet Metal Mechanic (Aircraft), WG-3806-10, because of [his] limited duty restrictions." Id. at 14-15. Moreover, according to the Agency's uncontroverted testimony in the arbitration proceeding, the EEO complaint concerned the Agency's failure to promote the grievant "due to his undependability and leave usage" and in that proceeding the grievant had relied on an Agency policy that employees must have a composite leave balance of 200 hours. Id. at 14. It seems clear to us that both the grievance and the earlier EEO complaint concern at least in part the Agency's failure to promote the grievant to the WG-10 level because of the Agency's reliance on its policy that it will not promote an employee who does not have a certain leave balance.

We recognize that there are differences between the two proceedings. For example, in the grievance the Union claimed that the grievant should have been promoted in May 1987, whereas the EEO complaint sought a promotion from May 25, 1988. In addition, the grievance argued that the grievant's eligibility for promotion stemmed from his completion of Vo-Tech training, which had qualified him to do WG-10 level work, while the EEO complaint appears to have focused on a later injury and consequent limited duty restrictions. These differences do not obscure the fact that the same "matter" is involved in both proceedings: the alleged prohibited personnel practice of failing to promote the grievant to the WG-10 level. See U.S. Marshals Service, 23 FLRA at 567. Significantly, although the EEO complaint may not have relied on the grievant's completion of Vo-Tech training, it sought a promotion that could not have been awarded in the absence of a demonstration that the complainant was qualified for the position. We conclude that the Union has not established that the EEO complaint and the grievance concerned different matters under section 7121(d), despite the difference in the dates and rationales employed to claim eligibility for the promotion. See HUD, 42 FLRA at 818.