[ v23 p414 ]
The decision of the Authority follows:
23 FLRA No. 60 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-953 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator Seymour Strongin 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 inattention to duty. On October 3, 1983, the Activity proposed to suspend the grievant for 14 days, and during the advance notice period of the proposed disciplinary action, the grievant on November 10, 1983, consulted with an equal employment opportunity (EEO) counselor concerning the proposed suspension pursuant to the precomplaint procedures of 29 CFR Section 1613.213. On December 7, 1983, the proposed penalty was reduced to a proposed 10-day suspension, and on January 23, 1984, the Activity issued a final decision suspending the grievant for 7 days. On February 3, 1984, the grievant filed the grievance which was submitted to arbitration protesting that the suspension was not for just cause. In the proceeding before the Arbitrator, the Activity argued that because of the contact with the EEO counselor on November 10, 1983, the subsequently filed grievance was barred by section 7121(d) of the Statute. /1/ Specifically, the Activity maintained that by consulting with the counselor under the precomplaint procedures of 29 CFR Section 1613.213, the grievant raised the matter of his suspension under the statutory EEO complaint procedures. Consequently, the Activity contended that raising the matter subsequently under the negotiated grievance procedure was precluded by section 7121(d), which permits 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. On that basis, the Arbitrator ruled that the grievance was not precluded by section 7121(d) of the Statute. On the merits, the Arbitrator set aside the suspension, but stated that the Activity may issue the grievant a written reprimand. III. EXCEPTION A. Contentions In its exception the Agency contends that the grievance was barred by, and the award is consequently deficient as contrary to, section 7121(d) of the Statute. In support, the Agency essentially argues that the matter raised by the grievant under both the statutory and negotiated procedures was the same and that such matter was earlier raised under the statutory EEO complaint procedures by initiating the precomplaint procedures of 29 CFR Section 1613.213. B. Analysis and Conclusions Section 7121(d) provides that when an employee affected by a prohibited personnel practice under section 2302(b)(1) /2/ 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, without deciding whether the matters raised under the statutory and negotiated procedures were the same, the Authority concludes that the grievance was filed before the grievant initiated the action under the statutory EEO complaint procedures and that therefore the grievance was not precluded by section 7121(d) of the Statute by the grievant's previous contact with and EEO counselor. Section 7121(d) provides with respect to grievances that the employee shall be deemed to have exercised the option to raise the matter under the negotiated grievance procedure when the employee timely files a grievance in writing in accordance with the provisions of the negotiated grievance procedure. However, with respect to statutory procedures, section 7121(d) merely provides that the option is exercised at the time the employee timely initiates an action under the applicable statutory procedure. In addition, 29 CFR part 1613, governing equal employment opportunity in the Federal government, does not specify when a matter of discrimination under section 717 of the Civil Rights Act of 1964 is raised under the statutory EEO complaint procedures or when an action is initiated under those procedures. /3/ For the reasons that follow, we conclude that under the provisions of section 7121(d) of the Statute, a grievance timely filed in writing in accordance with the negotiated grievance procedure is only precluded or barred by the grievant having earlier raised the same matter by the timely filing of a formal written complaint in accordance with 29 CFR Section 1613.214. Contrary to the argument of the Agency, consultation with an EEO counselor pursuant to the precomplaint process of 29 CFR Section 1613.213 does not preclude the subsequent filing of a grievance. One of the primary purposes of section 7121(d) is to preclude litigation of the same matter under both the applicable statutory procedure and the negotiated grievance procedure. This purpose is not served by having grievances filed under the negotiated grievance procedure precluded or barred by an employee's informal contact with an EEO counselor under 29 CFR Section 1613.213. The precomplaint stage of the statutory EEO process is not a formal litigation proceeding. As emphasized by the court in Mertz v. Marsh, 786 F.2d 1578, 1580-81 (11th Cir. 1986), in denying attorney fees for services performed during the precomplaint process, that stage of the process is different in purpose and nature from the proceedings after the filing of a formal written complaint under section 1613.214. Specifically, the court noted that the precomplaint process is informal; the identity of the complainant is confidential; the claim need not be in writing; the counselor has a duty to give counsel as well as to seek a solution on an informal basis; and if this stage does not bring the matter to solution, the aggrieved person must be notified of the right to file a complaint of discrimination. In short, the court affirmed for purposes of the statutory provisions authorizing attorney fees the "drawing of a line between the ameliatory system of .213 and the formal complaint procedure of .214." 786 F.2d at 1581. We agree that the precomplaint process is a predominantly informal, confidential, and conciliatory process. We note in addition that at the conclusion of the process nothing precludes an employee from seeking a formal resolution of the employee's concern by filing a formal complaint of discrimination. As we have previously indicated, one of the purposes of section 7121(d) is to preclude relitigation of a matter previously litigated in a fashion binding on all parties. This purpose is best served if, in determining whether an election has occurred under section 7121(d), the line is drawn between the informal and confidential counseling system of section 1613.213 and the litigation proceedings commenced by the filing of a formal written complaint under section 1613.214. In addition, this determination in our judgment best facilitates the settlement of disputes between employees and their employing agencies involving conditions of employment. Certainly, employees contact EEO counselors seeking information, advice, and counseling on a wide variety of matters and may be advised that there is no basis for a discrimination complaint under applicable EEO laws and regulations. Under the interpretation of section 7121(d) advanced by the Agency in this case, an employee in such circumstances would be precluded from raising under the negotiated grievance procedure any matter that was discussed with the EEO counselor. We find that such a result was not intended by section 7121(d) and does not promote the purpose of the Statute of encouraging the settlement of disputes. Similarly, this determination is consistent with the provision of 29 CFR Section 1613.403 specifying when a "mixed case complaint" /4/ is filed for purposes of the election between a mixed case complaint or a "mixed case appeal" /5/ to the Merit Systems Protection Board. In this situation, which is similar to the election of the statutory EEO complaint procedure involved in this case, 29 CFR Section 1613.403 specifies that the election of the mixed case complaint occurs when the formal written complaint is filed pursuant to 29 CFR Section 1613.214. IV. DECISION Accordingly, for these reasons, the Agency's exception provides no basis for finding the award deficient as contrary to section 7121(d) of the Statute and the exception is denied. Issued, Washington, D.C., September 25, 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) of the Statute pertinently 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. (2) Section 2302(b)(1) pertinently provides: (b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority -- (1) discriminate for or against any employee or applicant for employment -- (A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964(.) (3) We note that the Equal Employment Opportunity Commission has proposed to amend its regulations to provide at 29 CFR Section 1613.219 that an election to proceed under EEO procedures is indicated only by the filing of a formal written complaint and that the use of the precomplaint process of 29 CFR Section 1613.213 does not constitute an election of remedies. 51 Fed. Reg. 29482, 29483, 29488-89 (Aug. 18, 1986). (4) 29 CFR Section 1613.402(a) defines a mixed case complaint. (5) 29 CFR Section 1613.402(b) defines a mixed case appeal.