American Federation of Government Employees, Local 1592 (Union) and United States Department of the Air Force, Hill Air Force Base, Utah (Agency)

[ v57 p882 ]

57 FLRA No. 187







June 21, 2002


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Thomas L. Watkins filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.

      The Arbitrator denied a grievance alleging that the Agency failed to implement an agreement settling the grievant's equal employment opportunity (EEO) complaint. Specifically, the Arbitrator found that the grievant could not file a grievance over the Agency's alleged failure to implement that settlement agreement because she had agreed, in the settlement agreement, to pursue relief through the statutory EEO procedures. For the reasons that follow, we deny the Union's exception.

II.     Background and Arbitrator's Award

      Following her non-selection for a vacant position, the grievant, believing that she had been discriminated against because of her age, filed an informal complaint with an EEO counselor. She and the Agency subsequently entered into a settlement agreement resolving her complaint. As part of the settlement agreement, the grievant agreed not to pursue the issue in her complaint "under any other avenue of redress." Exceptions, Tab 9. The settlement agreement also provides:

In the event that the complainant perceives that management has failed to comply with the terms of this agreement or that this agreement is being violated in any way, complainant will notify, in writing, the Commander's Designee . . . within 30 days of the violation.

Id. Furthermore, the settlement agreement permitted the grievant to request the reinstatement of her complaint in writing if the Agency failed to carry out the terms of the settlement agreement.

      On January 25, 2001, the grievant wrote the Agency's Chief EEO Counselor, stating her belief that the Agency had violated the settlement agreement. She also requested that, "we return to status quo and I am permitted to start the EEO complaint process over in order to resolve my EEO complaint." Award at 2. The Arbitrator then found that the Union filed a grievance protesting the absence of a resolution in the case and the refusal of management to hold a step one grievance meeting on February 5, 2001. Award at 3. The Agency subsequently denied the grievance, informing the grievant that because she chose to raise the matter under a statutory procedure by contacting the Agency's Chief EEO Counselor on January 25, she could not also file a grievance over the matter.

      In response to the grievant's January 25 letter, the Agency's Chief EEO Counselor informed the grievant that the Agency had complied with the terms of the settlement agreement and informed her of her right to appeal the matter to the Equal Employment Opportunity Commission (EEOC). She then filed an appeal with the EEOC over the alleged breach of the settlement agreement on April 13, 2001.

      After the parties could not resolve the contractual grievance in this matter, they submitted it to arbitration. The parties agreed that an employee must make a choice between the negotiated grievance procedure and the statutory processes. The Union also argued that it had the right to pursue the breach of the EEO settlement agreement in either the EEO process or the negotiated grievance procedure. In determining in which forum the employee had elected to pursue her complaint, the Arbitrator first found that the settlement agreement had ended the pre-complaint phase of the statutory EEO complaint process. He then ruled that the grievance was not arbitrable because: (1) the grievant was past the pre-complaint counseling process; (2) the grievant had agreed to pursue relief through the EEO process if she believed that the settlement agreement was violated; (3) the grievant had written to the Agency's Chief EEO Counselor on January 25 to express her belief that the settlement agreement had been violated; (4) her appeal was moving through the statutory EEO process. Award at 6. [n1]  Based on this ruling, he dismissed the grievance. [ v57 p883 ]

III.     Positions of the Parties

A.     Union's Exception

      The Union asserts that the award is contrary to 5 U.S.C. § 7121(d). [n2]  The Union argues that the grievant filed a grievance protesting the alleged breach of the settlement agreement on January 16, 2001, prior to her initiation of the statutory appeals procedure on April 13, 2001, the date she filed an appeal with the EEOC. Because the grievance was filed before the initiation of the statutory appeals procedure, the Union contends that the grievant's proper avenue of redress for the alleged breach of the settlement agreement, under 5 U.S.C. § 7121(d), is the negotiated grievance procedure.

B.     Agency's Opposition

      The Agency maintains that the award is not contrary to law. It argues that a finding that the award is contrary to law would be inconsistent with the intent of the law and the parties' agreement to limit the options available in cases of this nature.

IV.     Analysis and Conclusions

      The Union alleges that the award is contrary to 5 U.S.C. § 7121(d). The Authority reviews questions of law raised by an union's exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995), (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In appl