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The decision of the Authority follows:
22 FLRA No. 44 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3230, AFL-CIO Union and EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Agency Case No. 0-AR-1064 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator Joe H. Henderson filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. II. BACKGROUND AND ARBITRATOR'S AWARD On June 5, 1984, the grievant was issued a notice of decision suspending him for two days for failing to follow instructions of his supervisor. On June 21, 1984, the grievant filed with the Agency a formal complaint of discrimination because of race and reprisal. In the complaint the grievant alleged that he had been subjected to unwarranted disciplinary actions because he was black and as a reprisal for representing a former employee in a hearing on her complaint of discrimination. He claimed that his work had been subjected to greater scrutiny, that he had been unfairly counseled, and that he had been verbally harassed on a recurring basis. He also claimed that blacks, as a class, were subjected to disparate discipline and received fewer incentive awards. As corrective action, he sought written apologies from his supervisor and from the district director. On June 26, 1984, a grievance was filed on the grievant's behalf, and ultimately submitted to arbitration, contending that the grievant's suspension did not promote the efficiency of the service, but instead was motivated by personal animosity. Before the Arbitrator, the Activity argued that the grievance was barred by section 7121(d) of the Statute /*/ and the corresponding provision of the parties' collective bargaining agreement. Specifically, the Activity maintained that by filing the formal complaint of discrimination and mentioning "unwarranted disciplinary actions," the grievant had raised the matter of his suspension under the statutory equal employment opportunity (EEO) complaint procedures. Consequently, the Activity argued that the raising of the matter of his suspension subsequently under the negotiated grievance procedure was precluded by section 7121 and the agreement which permit 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. Accordingly, the Arbitrator ruled on this basis that the grievance was not precluded. On the merits the Arbitrator set aside the suspension finding that it violated the parties' collective bargaining agreement. III. EXCEPTION A. Contentions As its exception the Agency contends that the award is contrary to section 7121(d) of the Statute. The Agency's position is that the grievance was precluded because the grievant raised the matter of his suspension under the statutory EEO procedures prior to the filing of the grievance. 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 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 the Arbitrator ruled that the matter raised under the statutory EEO procedures was different from the matter of the grievant's suspension raised under the negotiated grievance procedure and that consequently the grievance was not precluded. The Authority concludes that the Agency fails to establish otherwise and that therefore no basis is provided for finding the award deficient. Specifically, the Authority finds contrary to the position of the Agency that with no express reference to the June 5th suspension and with no requested corrective action relating to that suspension in the grievant's EEO complaint, the matter which was the subject of the grievance is not the same as any of the matters which were the subject of the EEO complaint filed with the Agency. V. DECISION Accordingly, the Agency's exception is denied. Issued, Washington, D.C., July 9, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) 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 applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first.