National Treasury Employees Union, Chapter 145 (Union) and United States Department of Homeland Security, U.S. Customs and Border Protection, Laredo, Texas (Agency)

65 FLRA No. 188                                                                                                                                                                                                      
June 8, 2011
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I.     Statement of the Case
        This matter is before the Authority on exceptions to an award of Arbitrator Don B. Hays 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 exceptions.
                The Arbitrator found that the issue of the propriety of the grievant’s suspension was not arbitrable. For the reasons that follow, we set aside the award and remand this matter to the parties for submission, absent settlement, to an arbitrator of their choice.
II.    Background and Arbitrator’s Award
                The grievant contacted an Agency Equal Employment Opportunity (EEO) counselor and alleged that the Agency was acting unlawfully in various ways, including the denial of opportunities to work overtime. Award at 4. The grievant elected to participate in an informal, precomplaint mediation process, but when that process was unsuccessful, the grievant filed a formal EEO complaint. Id. at 4 & 6. Although the official complaint form did not identify any specific unlawful actions, it was attached to a cover letter that mentioned, among other things, an Agency proposal to suspend the grievant for fourteen days. Id. at 6. The Agency dismissed the formal EEO complaint as untimely. Id.
                Subsequently, the Agency mitigated the grievant’s proposed suspension from fourteen to two days. Id. at 7. The Union appealed the two-day suspension by invoking expedited arbitration. Id. The Arbitrator framed the relevant issue as follows: “Does 5 U.S.C. § 7121 [(§ 7121)[1]] prohibit or otherwise limit the arbitration of the appeal of [the grievant’s] two-day suspension [(the appeal)], because the subject matter[s] raised by [the appeal] were essentially the same ‘matters’ previously raised by the grievant in his original [EEO] complaint?”[2] Id. at 1.
        The Arbitrator found that the formal EEO complaint and the appeal involved the same matters. Id. at 21. As such, and as the grievant filed his formal EEO complaint before the appeal, the Arbitrator determined that § 7121 barred the appeal. Id. The Arbitrator stated, in this regard, that the Agency had dismissed the formal EEO complaint “on the basis of time limitations[,]” id. at 6, and that “because of the previous (time) limitation forfeiture of [the grievant’s] EEO claims, [the Arbitrator’s] decision to summarily dismiss th[e] appeal will foreclose an independent ‘due process’ review[]” of “the alleged injustice” of the two-day suspension, id. at 20. Nevertheless, the Arbitrator found that “the mandates of § 7121[,] can neither be waived, forfeited nor ignored.” Id. Accordingly, the Arbitrator dismissed the appeal. Id. at 20.
        III. Positions of the Parties
        A.    Union’s Exceptions
        The Union argues that the award is contrary to § 7121(d), 29 C.F.R. § 1614.301,[3] and applicable case law. See Exceptions at 14. In this regard, the Union argues that § 7121(d) does not bar the appeal because the grievant “did not timely file an EEO complaint.” Id. at 15. Also in this regard, the Union contends that under 29 C.F.R. § 1614.301(a), only the filing of a formal EEO complaint constitutes an election under § 7121(d), and that pre-complaint counseling does not constitute an election. Id. at 16. In addition, the Union argues that § 7121(d) does not bar the appeal because: (1) the grievant could not have filed a valid EEO complaint over his suspension when it initially was proposed, id. at 17; (2) the negotiated grievance procedure expressly precludes proposed personnel actions, id. at 18; and (3) the subject of the EEO complaint and the subject of the appeal are not the “same matter[,]” id. at 21.
                B.            Agency’s Opposition
        The Agency argues that the Arbitrator did not err in finding that § 7121(d) bars the appeal. In response to the Union’s claim that the grievant did not timely file his EEO complaint, the Agency states that § 7121(d) bars arbitration when the employee has “timel