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The decision of the Authority follows:
42 FLRA No. 54
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.(1)
The Arbitrator found that the grievance was not arbitrable under section 7121(d) of the Statute. For the following reasons, we conclude that the Union has not demonstrated that the award is deficient. Accordingly, the Union's exceptions will be denied.
II. Background and Arbitrator's Award
The grievant, a GS-14 employee working 32 hours per week, requested a reduction in his workweek from 4 days to 3 days. The Agency denied the request, and in July 1989 the grievant filed a formal equal employment opportunity (EEO) complaint alleging that the denial was based on sex discrimination.
In July 1990, the grievant resubmitted his request for a 3-day workweek, and the Agency again denied the request. The grievant filed a grievance with respect to that denial. The Agency rejected the grievance on the ground that the matter was "'currently being resolved through a statutory EEOC procedure.'" Award at 1. The grievance was then submitted to arbitration. The Arbitrator stated that the issue was whether the grievant's proposed "[w]orkweek change" was arbitrable. Id.
Applying section 7121(d) of the Statute, the Arbitrator determined that the grievance was not arbitrable because the grievant filed a formal EEO discrimination complaint on the same matter before filing the grievance.(2) In reaching his decision, the Arbitrator relied on the Authority's definition of "matter," as used in section 7121(d), in U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 564 (1986) (Marshals Service). The Arbitrator found that "the Union's argument that a discrimination claim is not at issue in the grievance is not relevant, because the test under section 7121(d) is matter or action based, as opposed to issue oriented. Under the applicable test, the essence or substance of the Agency's action was the denial of the grievant's request for a reduced workweek." Award at 4-5 (footnote omitted).
The Arbitrator also rejected the Union's argument that because the grievant's office hired two additional staff members during the year between the grievant's two requests for a 3-day workweek, the requests "resulted in two wholly separate personnel actions[.]" Id. at 3. The Arbitrator stated that "based on the Agency's representations in its reply brief . . . the additional two staff [members did] not constitute a substantial change which warrants a review for the purpose of determining whether a new matter has been raised in the grievance." Id. at 5 n.
III. The Union's Exceptions
The Union asserts that the Arbitrator erred in concluding that the grievance was not arbitrable under section 7121(d) of the Statute. The Union asserts that section 7121(d) "is only relevant if the matter in question is a personnel practice prohibited by 5 U.S.C. § 2302(b)(1)[.]"(3) Exceptions at 1. According to the Union, the discrimination claim raised in the EEO complaint was "a different matter from the contract claims brought under the grievance[.]" Id. at 8.
In addition, the Union argues that the EEO complaint and the grievance involve different matters because the two actions resulted from separate requests by the grievant that were denied by different individuals. The Union also notes that two staff members were added to the grievant's office and that some of the grievant's duties were assigned to one of those employees. The Union argues that the Arbitrator should not have accepted the Agency's "vague assertion" in its response to the Union's reply brief that the addition of two staff members did not affect the application of section 7121(d) of the Statute in this case. Id. at 14.
Finally, the Union asserts that it "agreed to give Management the opportunity to respond to the Union's Reply Brief, on the condition that the Union could in turn have an opportunity to file one last brief[.]" Id. at 15. The Union claims that the Arbitrator issued his decision "prematurely," violating "basic fairness and due process . . . ." Id.
IV. The Agency's Opposition
The Agency asserts that the Arbitrator correctly determined that the grievance is not arbitrable under section 7121(d) of the Statute. In addition, the Agency disputes the Union's claim that the Arbitrator unfairly denied the Union an opportunity to file a final brief. Although the Agency acknowledges that it agreed to give the Union an opportunity to submit a final brief, it contends "that a reasonable amount of time had passed" before the issuance of the Arbitrator's decision. Opposition at 4.
V. Analysis and Conclusions
For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient.
A. Section 7121(d) of the Statute
The Statute provides in section 7121(d) that when an employee affected by a prohibited personnel practice under 5 U.S.C. § 2302(b)(1), such as an allegation of discrimination, has raised the matter under a statutory procedure, the employee may not file a written grievance under the negotiated grievance procedure concerning the same matter. For a grievance to be precluded by section 7121(d), two conditions must be met: (1) the matter which is the subject of the grievance must be the same matter which was the subject of the action initiated under the statutory procedure; and (2) such matter must have been earlier raised by the employee timely initiating an action under the statutory procedure. See American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 36 FLRA 212, 215 (1990).
The Authority defined "matter," for purposes of section 7121(d), in Marshals Service, where the Authority found that an EEO complaint filed over a proposed suspension barred a later grievance over the final decision suspending the grievant. The Authority concluded that the term "matter" in section 7121(d) refers "not to the issue or claim of prohibited discrimination, but, rather, to the suspension action." 23 FLRA at 567. See also U.S. Department of Justice, Immigration and Naturalization Service, El Paso, Texas and American Federation of Government Employees, National Border Patrol Council, Local 1929, 40 FLRA 43, 51-55 (1991). Compare American Federation of Government Employees, Local 3230, AFL-CIO and Equal Employment Opportunity Commission, 22 FLRA 448, 450 (1986) (Authority concluded that section 7121(d) did not bar resolution of grievance concerning suspension action where earlier-filed EEO complaint did not mention the suspension and did not request any relief concerning the suspension).
Here, the Arbitrator found, and we agree, that the EEO complaint and the grievance concerned the same "matter," within the meaning of section 7121(d). Both the EEO complaint and the grievance resulted from the Agency's denials of requests by the grievant that his weekly work schedule be reduced from 4 days to 3. In addition, almost identical remedies were requested by the grievant in the complaint and the grievance.(4) As such, we reject the Union's assertion that section 7121(d) is inapplicable because the grievance did not allege unlawful discrimination and did not involve a prohibited personnel practice. Under Marshals Service, section 7121(d) bars a grievance concerning a personnel action, or matter, if the matter was central to a EEO complaint raised by the grievant in an earlier filed EEO complaint.
Similarly, we conclude that the Union has not demonstrated that the award conflicts with section 7121(d) because the EEO complaint and the grievance resulted from decisions by two different Agency officials, at different times, after circumstances in the grievant's office had changed. With respect to the first point, the Union cites no authority, and none is apparent to us, for the proposition that, in situations where an employee initiates two requests for Agency action, section 7121(d) does not apply unless the same Agency official acts on both requests. With respect to the latter two points, we agree with the Union that, in cases involving denials of two employee requests, it is relevant to examine the factual circumstances surrounding the requests and denials, including their timing, in determining whether they involve the same "matter," within the meaning of section 7121(d). In this case, however, the Union has not demonstrated that the lapse of time between the grievant's two requests, coupled with the addition of two staff members to the grievant's office, compels a conclusion that the Arbitrator erred in concluding that the EEO complaint and the grievance concerned the same matter.
In sum, the Union has not demonstrated that the award conflicts with section 7121(d). Accordingly, this exception provides no basis for finding the award deficient.
B. Fair Hearing
The Union asserts that, by issuing his decision before the Union filed a final brief, the Arbitrator denied the Union the "opportunity to set out its complete argument." Exceptions at 15. We construe the assertion as a contention that the Arbitrator failed to conduct a fair hearing.
The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. See, for example, U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 107 (1991) (arbitrator's acknowledged failure to consider the union's position constituted failure to conduct a fair hearing). However, an arbitrator has considerable latitude in the conduct of a hearing. See, for example, Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620, 629-30 (1988) (Carswell Air Force Base) (arbitrator's refusal to delay hearing did not deny union a fair hearing).
We conclude that the Union has not established that the Arbitrator failed to conduct a fair hearing by issuing his decision before the Union filed a final reply brief. Although it is undisputed that the Union was to have an opportunity to respond to the Agency's final brief, no date was established for submission of a Union response. Moreover, there is no assertion that the Arbitrator agreed to withhold issuance of an award until receipt of a Union response. After the Agency filed its brief on March 25, 1991, 9 days elapsed before the Arbitrator issued his decision. During this 9-day period the Union neither filed a response to the Agency's final brief nor notified the Agency or the Arbitrator that it intended to file a response. In these circumstances, we conclude that the Union was not denied an opportunity to file a final response and, by issuing the award before receipt of a response, the Arbitrator did not deny the Union a fair hearing. See, for example, Carswell Air Force Base, 31 FLRA at 629-30.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The Union also filed a response to the Agency's opposition. As the Authority's regulations do not provide for the filing of a response to an opposition, the response has not been considered. See U.S. Department of the Army, Reserve Personnel Center, St. Louis, Missouri and American Federation of Government Employees, Local 900, 39 FLRA 402 (1991).
2. Section 7121(d) of the Statute provides in pertinent part:
(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 . . . .
3. 5 U.S.C. § 2302(b) 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);
(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation[.]
4. In the EEO complaint, the grievant requested "[c]hange in work week from 4 days . . . to 3 days, and possibly recompense for having had to work more time than desired since September 1987." Attachment B(2) to Union's Exceptions. In the grievance, the grievant requested as a remedy "a prospective reduction to a 3 day per week schedule, and a 2 day per week schedule to compensate for any weeks in which the improper decision stands." Attachment B(3) to Union's Exceptions.