23:0564(78)AR - DOJ, Marshals Service and International Council of U.S. Marshals Service Locals, AFGE -- 1986 FLRAdec AR
[ v23 p564 ]
23:0564(78)AR
The decision of the Authority follows:
23 FLRA No. 78
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-977
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Thomas L. Hewitt 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 malicious false statements and for an unexcused absence. On
December 28, 1983, the Activity proposed to suspend the grievant for 5
days. On January 3, 1984, the grievant amended a previously filed
unfair labor practice charge to claim that the Activity was threatening
him with disciplinary action as a reprisal against him for protected
activity. On January 4, 1984, he filed a formal complaint under
statutory equal employment opportunity (EEO) procedures alleging he had
been discriminated against because of his race and age and demanding
that he not be suspended as proposed. On March 27, 1984, the Activity
issued a final decision suspending the grievant for 5 days. On April
23, 1984, the grievant filed a grievance which was submitted to
arbitration protesting that the suspension was discriminatory and not
for just cause.
In the proceeding before the Arbitrator, the Activity argued that
under section 7121(d) of the Statute, /1/ the grievance was barred by
the earlier-filed EEO complaint. The Activity also argued that under
section 7116(d) of the Statute, the grievance was barred by the
earlier-filed amended unfair labor practice charge. The Arbitrator
acknowledged that the EEO complaint was filed before the grievance and
expressly concerned the suspension action. The Arbitrator found that
"(t)he EEO complaint is therefore recognized as the employee's option in
this case." However, the Arbitrator further found that the grievant had
exercised his option under section 7121(d) only as to the issue of
discrimination in the matter. He ruled that the issue of whether the
suspension was for just cause had not been raised elsewhere and
therefore was not precluded by section 7121(d). He similarly ruled that
the issue of just cause in the matter was also not precluded by section
7116(d). On the issue of just cause, the Arbitrator determined that
only the unexcused absence charge was sustained and he reduced the
suspension to 1 day.
III. EXCEPTIONS
In its exceptions the Agency contends that the award is contrary to
section 7121(d) of the Statute. /2/ Specifically, the Agency argues
that the grievance was barred by the grievant's earlier filing of a
formal complaint of discrimination under statutory EEO procedures. The
Agency maintains that contrary to the finding of the Arbitrator, the
matter the grievant elected to raise under the statutory procedure was
the matter of his suspension allegedly because of his race and age, a
prohibited personnel practice under 5 U.S.C. Section 2302(b)(1). /3/
Thus, the Agency asserts that the raising of the matter of his
suspension subsequently under the negotiated grievance procedure was
precluded by section 7121(d) which provides the employee an option, but
bars use of both procedures.
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 timely
raised the matter under an applicable statutory procedure, the matter
subsequently may not be raised as a grievance. In American Federation
of Government Employees, Local 3230, AFL-CIO and Equal Employment
Opportunity Commission, 22 FLRA No. 44 (1986), the Authority identified
the two conditions of section 7121(d) which must be met in order for a
grievance to be precluded:
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 we conclude that both of the conditions of section
7121(d) were met and that consequently the matter before the Arbitrator
was precluded by the Statute from being raised as a grievance.
Specifically, we find in this case that the term "matter" as used in
section 7121(d) refers not to the issue or claim of prohibited
discrimination, but, rather, to the suspension action. The term
"matter" described in section 7121(d) pertains to prohibited personnel
practices under section 2302(b)(1). In turn, section 2302(b) describes
prohibited personnel practices in terms of "any personnel action" with
"personnel action" defined in section 2302(a)(2)(A)(iii) to include a
suspension for 14 days or less. Section 2302(b)(1) prohibits any
employee who has authority to take, direct others to take, recommend, or
approve any personnel action from discriminating with respect to such
personnel action authority. Thus, a personnel action is central to the
prohibited practice of section 2302(b)(1) and specifically encompasses
recommended and approved personnel actions. Accordingly, we find that
the matter raised both by the grievance and the formal complaint of
discrimination was the suspension, either proposed or final, of the
grievant.
As noted, the Arbitrator acknowledged that the EEO complaint
expressly concerned the suspension action. The complaint expressly
referenced the suspension action and the grievant in the complaint
expressly requested as corrective action that he not be suspended as
proposed. This is in contrast to the situation presented in EEOC, 22
FLRA No. 44. In that case there was no express reference in the EEO
complaint to the suspension action over which the grievance was filed
and no requested corrective action in the complaint relating to that
suspension. Accordingly, we agreed with the arbitrator that the matters
raised by the EEO complaint and the grievance in that case were
different and denied the exception contending otherwise.
In summary, there was an election by the grievant, the aggrieved
employee, to raise the matter in this case under the statutory EEO
procedures. The Authority has recognized that a primary purpose and
effect of election-of-remedy provisions of the Statute is to prevent
relitigation of a matter in another forum after a choice of procedures
in which to raise the matter has been made by the aggrieved party. See
U.S. Department of Justice, United States Marshals Service and
International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA No.
60 (1986). Slip op. at 4. Thus, since it is undisputed that the
complaint was filed first, the matter raised by the grievant in his
formal EEO complaint was prohibited from being relitigated under the
negotiated grievance procedure. Consequently, the grievance before the
Arbitrator was precluded by the Statute from consideration.
V. DECISION
For these reasons, the award is deficient as contrary to section
7121(d) of the Statute and is set aside. /4/
Issued, Washington, D.C., October 7, 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) 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 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) The Agency also contends that the award is contrary to section
7116(d) of the Statute.
(3) 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 (42 U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under sections 12 and 15
of the Age Discrimination in Employment Act of 1967 (29 U.S.C.
631, 633a)(.)
(4) In view of this decision, it is not necessary that we address the
Agency's other exception to the award.