22:0448(44)AR - AFGE Local 3230 and EEO -- 1986 FLRAdec AR

 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.