American Federation of Government Employees, Local 1592 (Union) and United States Department of the Air Force, Hill Air Force Base, Utah (Agency)

[ v57 p882 ]

57 FLRA No. 187

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1592
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE
HILL AIR FORCE BASE, UTAH
(Agency)

0-AR-3451

_____

DECISION

June 21, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Thomas L. Watkins filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.

      The Arbitrator denied a grievance alleging that the Agency failed to implement an agreement settling the grievant's equal employment opportunity (EEO) complaint. Specifically, the Arbitrator found that the grievant could not file a grievance over the Agency's alleged failure to implement that settlement agreement because she had agreed, in the settlement agreement, to pursue relief through the statutory EEO procedures. For the reasons that follow, we deny the Union's exception.

II.     Background and Arbitrator's Award

      Following her non-selection for a vacant position, the grievant, believing that she had been discriminated against because of her age, filed an informal complaint with an EEO counselor. She and the Agency subsequently entered into a settlement agreement resolving her complaint. As part of the settlement agreement, the grievant agreed not to pursue the issue in her complaint "under any other avenue of redress." Exceptions, Tab 9. The settlement agreement also provides:

In the event that the complainant perceives that management has failed to comply with the terms of this agreement or that this agreement is being violated in any way, complainant will notify, in writing, the Commander's Designee . . . within 30 days of the violation.

Id. Furthermore, the settlement agreement permitted the grievant to request the reinstatement of her complaint in writing if the Agency failed to carry out the terms of the settlement agreement.

      On January 25, 2001, the grievant wrote the Agency's Chief EEO Counselor, stating her belief that the Agency had violated the settlement agreement. She also requested that, "we return to status quo and I am permitted to start the EEO complaint process over in order to resolve my EEO complaint." Award at 2. The Arbitrator then found that the Union filed a grievance protesting the absence of a resolution in the case and the refusal of management to hold a step one grievance meeting on February 5, 2001. Award at 3. The Agency subsequently denied the grievance, informing the grievant that because she chose to raise the matter under a statutory procedure by contacting the Agency's Chief EEO Counselor on January 25, she could not also file a grievance over the matter.

      In response to the grievant's January 25 letter, the Agency's Chief EEO Counselor informed the grievant that the Agency had complied with the terms of the settlement agreement and informed her of her right to appeal the matter to the Equal Employment Opportunity Commission (EEOC). She then filed an appeal with the EEOC over the alleged breach of the settlement agreement on April 13, 2001.

      After the parties could not resolve the contractual grievance in this matter, they submitted it to arbitration. The parties agreed that an employee must make a choice between the negotiated grievance procedure and the statutory processes. The Union also argued that it had the right to pursue the breach of the EEO settlement agreement in either the EEO process or the negotiated grievance procedure. In determining in which forum the employee had elected to pursue her complaint, the Arbitrator first found that the settlement agreement had ended the pre-complaint phase of the statutory EEO complaint process. He then ruled that the grievance was not arbitrable because: (1) the grievant was past the pre-complaint counseling process; (2) the grievant had agreed to pursue relief through the EEO process if she believed that the settlement agreement was violated; (3) the grievant had written to the Agency's Chief EEO Counselor on January 25 to express her belief that the settlement agreement had been violated; (4) her appeal was moving through the statutory EEO process. Award at 6. [n1]  Based on this ruling, he dismissed the grievance. [ v57 p883 ]

III.     Positions of the Parties

A.     Union's Exception

      The Union asserts that the award is contrary to 5 U.S.C. § 7121(d). [n2]  The Union argues that the grievant filed a grievance protesting the alleged breach of the settlement agreement on January 16, 2001, prior to her initiation of the statutory appeals procedure on April 13, 2001, the date she filed an appeal with the EEOC. Because the grievance was filed before the initiation of the statutory appeals procedure, the Union contends that the grievant's proper avenue of redress for the alleged breach of the settlement agreement, under 5 U.S.C. § 7121(d), is the negotiated grievance procedure.

B.     Agency's Opposition

      The Agency maintains that the award is not contrary to law. It argues that a finding that the award is contrary to law would be inconsistent with the intent of the law and the parties' agreement to limit the options available in cases of this nature.

IV.     Analysis and Conclusions

      The Union alleges that the award is contrary to 5 U.S.C. § 7121(d). The Authority reviews questions of law raised by an union's exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995), (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      In finding that the grievant could not pursue the grievance, the Arbitrator relied upon the settlement agreement. In this connection, he found that the grievant had agreed, in the settlement agreement, to pursue relief through the EEO process in the event that she believed that the Agency had violated that agreement. Award at 6. This interpretation of the settlement agreement has not been challenged. Therefore, we will defer to the Arbitrator's finding that the grievant had bound herself to use statutory EEO procedures to pursue her claim that the Agency failed to comply with the terms of the settlement agreement. As such, § 7121(d) of the Statute is not a relevant basis on which to challenge the award.

      Section 7121(d) of the Statute permits matters involving claims under 5 U.S.C. § 2302(b)(1) to be filed under a negotiated grievance procedure or under the statutory procedure, but not both. For a grievance to be precluded under § 7121(d) of the Statute, two conditions must be met: (1) the matter which is the subject of the statutory proceeding is the same matter that is the subject of the grievance initiated under the negotiated grievance procedure; and (2) such matter must have been raised by the timely filing of an action under the statutory procedure. See, e.g., United States Dep't of the Air Force, Headquarters, Okla. City Air Logistics Ctr., Tinker Air Force Base, Okla., 43 FLRA 290, 296 (1991). The term "matter" as used in § 7121(d) of the Statute refers "`not to the issue or claim of prohibited discrimination,' but, rather, to the suspension action involved." Id. at 297, quoting United States Dep't of Justice, United States Marshals Serv., 23 FLRA 564, 567 (1986).

      The first prong of the test for preclusion under § 7121(d) of the Statute is satisfied as both the grievance and the grievant's letter to the Agency's Chief EEO Counselor concerned the same subject matter, the Agency's alleged noncompliance with the settlement agreement. With regard to the second prong of that same test, the Arbitrator found that the grievant, in the settlement agreement, had bound herself to pursue relief through the EEO process. Award at 6. Nothing in the Statute or Authority precedent prevents an employee from agreeing in advance to elect to use one procedure over another. Therefore, we conclude that the employee agreed to elect to use statutory EEO procedures to pursue her claim that the Agency failed to comply with the terms of the settlement agreement. Consequently, the Arbitrator's enforcement of that election does not establish that the award conflicts with § 7121(d). [n3] 

V.     Decision

      The Union's exception is denied.



Footnote # 1 for 57 FLRA No. 187

   In making this determination, the Arbitrator quoted the following language found at 29 C.F.R. § 1614.301(a), which requires employees to elect between the negotiated grievance procedure and the statutory EEO process:

An election to proceed under this part is indicated only by the filing of a written complaint; use of the pre-complaint process as described in § 1614.105 does not constitute an election for purposes of this section.

Footnote # 2 for 57 FLRA No. 187

   In pertinent part, 5 U.S.C. § 7121(d) 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 provisions of the parties' negotiated procedure, whichever event occurs first.