23:0414(60)AR - DOJ, Marshals Service and International Council of US Marshals Service Locals, AFGE -- 1986 FLRAdec AR
[ v23 p414 ]
23:0414(60)AR
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.