72 FLRA No. 128

 

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS

JOHN J. PERSHING VA MEDICAL CENTER

POPLAR BLUFF, MISSOURI

(Agency)

 

and

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 2338

(Union)

 

0-AR-5642

 

_____

 

DECISION

 

February 10, 2022

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

(Chairman DuBester concurring)

 

1. Statement of the Case

    

   In this case, we remind arbitrators that they cannot assert jurisdiction over a grievance that is barred under § 7121(d) of the Federal Service Labor-Management Relations Statute (the Statute).[1]

    

   An employee (the grievant) filed an equal employment opportunity (EEO) complaint alleging that the Agency created a hostile work environment by issuing him a proposed removal letter.  Later, the Union filed a grievance similarly contending that the Agency engaged in discriminatory bullying and harassment by proposing to remove the grievant.  Arbitrator Steven E. Kane issued an award finding the grievance arbitrable, and concluding that the proposed removal violated the parties’ collective‑bargaining agreement.

    

   In its exceptions to the award, the Agency argues that § 7121(d) of the Statute bars the grievance from arbitration.  Because the Union’s earlier-filed EEO complaint addresses the same matter as the grievance, we find the grievance barred by § 7121(d).  Therefore, we set aside the award.

    

2. Background and Arbitrator’s Award

    

   The grievant filed a formal EEO complaint asserting that the Agency subjected him to a racially hostile work environment.  In pertinent part, the EEO complaint stated that the Agency engaged in discrimination by, among other things, “issu[ing] a proposed removal which was rescinded.”[2]  Later that week, the Union filed a grievance on behalf of the grievant.  As relevant here, the grievance alleged that the Agency engaged in “bullying and harassment” by issuing the grievant a proposed removal.[3]  The parties could not resolve the grievance and proceeded to arbitration.

    

   At arbitration, the Agency argued that the grievance and earlier-filed EEO complaint concerned the same matter – the proposed removal that the Agency subsequently rescinded and mitigated to a                    five-day suspension.

    

   The Arbitrator framed the issues as follows:  “Did the Agency violate the [c]ollective[-b]argaining [a]greement and relevant public policy by bullying and harassing the [g]rievant?  If so, what is the appropriate remedy?”[4] 

    

   In the award, the Arbitrator found the grievance arbitrable without addressing the earlier-filed EEO complaint.[5]  On the merits, the Arbitrator concluded that the proposed removal of the grievant violated the master agreement because the Agency was not permitted to “use notices of proposed terminations as weapons.”[6]  The Arbitrator further found that the Agency displayed discriminatory intent and caused the grievant     “emotional injury” by proposing a removal.[7]  As a result, the Arbitrator sustained the grievance, in part.[8]

    

   The Agency filed exceptions to the award on June 12, 2020, and the Union filed exceptions to the award on June 17, 2020.  The Union filed an opposition to the Agency’s exceptions. 

                  

3. Preliminary Issue:  The Authority has jurisdiction over the exceptions.

    

   On August 10, 2020, the Authority’s Office of Case Intake and Publication issued an order directing the Agency and the Union to show cause why the Authority should not dismiss their exceptions for lack of jurisdiction under §§ 7122(a) and 7121(f) of the Statute.  The order stated, “[I]t appears that the bullying and harassment claims advanced in arbitration are inextricably intertwined with a proposed removal.”[9]  In their responses, the Union and Agency argued that the Authority has jurisdiction to review the exceptions.[10] 

    

   The preliminary question before us is whether our lack of jurisdiction over removals means that we lack jurisdiction over an award concerning a proposed removal.

    

   Our review of Authority precedent indicates that the issue of whether the Authority has jurisdiction over exceptions to an arbitration award concerning a proposed removal has not been consistently addressed.  In          U.S. Patent and Trademark Office, the Authority dismissed exceptions for lack of jurisdiction under          §§ 7122(a) and 7121(f) because the award related to a proposed removal.[11]  However, in U.S. Department of Transportation, FAA, the Authority held that it had jurisdiction to review the exceptions “because the grievant’s removal had only been proposed.”[12]  We take this opportunity to clarify the Authority’s jurisdiction to resolve exceptions to an award concerning a proposed removal.[13]

    

   Under § 7122(a) of the Statute, the Authority lacks jurisdiction to resolve exceptions to an award “relating to” a matter described in § 7121(f) of the Statute.[14]  Matters described in § 7121(f) include serious adverse actions, such as removals, that are covered under 5 U.S.C. §§ 4303 or 7512.[15]

    

   The Authority will determine that an award relates to a matter described in § 7121(f) “when it resolves, or is inextricably intertwined with,” a matter covered under § 4303 or § 7512.[16]  In making that determination, the Authority looks not to the outcome of the award but to whether the claim advanced in arbitration is one that would be reviewed by the Merit Systems Protection Board (MSPB) and, on appeal, by the United States Court of Appeals for the Federal Circuit.[17] 

    

   Previously, both the MSPB and Federal Circuit have held that the MSPB does not have jurisdiction over proposed removals.[18]  Therefore, consistent with the above standard, we find that the Authority has jurisdiction to resolve exceptions to an arbitration award where (1) the claim advanced in arbitration concerns a proposed removal;[19] and (2) the award does not resolve, and is not inextricably intertwined with, any resulting action covered under §§ 4303 or 7512.[20]  But where a party files exceptions to an arbitration award that resolves or is inextricably intertwined with a removal, the Authority will continue to find that it lacks jurisdictions under § 7122(a) of the Statute.[21] 

    

                   Applying that clarified standard here, we have jurisdiction to review the exceptions.  The claim advanced in arbitration was whether the Agency engaged in bullying and harassment by issuing the grievant a proposed removal.[22]  Further, the resulting discipline was a suspension of less than fourteen days[23]—a matter that is neither covered by §§ 4303 or 7512[24] nor at issue in this case.[25]  Thus, we conclude that the Authority has jurisdiction to review the parties’ exceptions to the award.[26]

    

4. Analysis and Conclusion:  Section 7121(d) of the Statute bars the grievance.

    

   The Agency argues that the award is contrary to § 7121(d) of the Statute.[27]  Specifically, the Agency contends that the grievance is inarbitrable because the grievant “elected EEO as a remedy . . . when he received [the] proposed removal.”[28]  The Authority reviews questions of law de novo.[29]  In conducting a de novo review, the Authority determines whether the arbitrator’s legal conclusions are consistent with the applicable standard of law.[30] 

    

   Under § 7121(d), an employee may raise a “matter under a statutory [EEO] procedure or the negotiated procedure, but not both.”[31]  For purposes of § 7121(d), the term “matter” refers “‘not to the issue or claim of prohibited discrimination,’ but rather, to the personnel action involved.”[32]  Thus, § 7121(d) bars a grievance concerning a personnel action if that matter was “central” to an earlier-filed EEO complaint.[33]  As relevant here, a proposed personnel action—such as the grievant’s proposed removal—constitutes a personnel action for purposes of § 7121(d).[34]

    

   Here, the grievant’s formal EEO complaint alleged that the Agency created a hostile work environment by “issu[ing] a proposed removal which was rescinded.”[35]  Similarly, the Union’s later-filed grievance alleged that the Agency’s issuance of a “proposed termination” constituted discriminatory bullying and harassment.[36]  And the Arbitrator concluded, in the resulting award, that the Agency violated the master agreement when it issued the grievant a proposed‑removal letter.[37]  Consequently, the Agency’s proposed removal of the grievant was the personnel action – or matter – at issue in both the EEO complaint and the grievance.[38]  By filing a formal EEO complaint over the proposed removal, the grievant elected that procedure and could not subsequently raise that same matter using the parties’ negotiated grievance procedure. 

    

                In its opposition, the Union contends that “[t]he thrust of th[e] EEO complaint is [a] racial slur and the hostile working environment it created, not a proposed removal.”[39]  However, this alleged distinction is inconsistent with the EEO complaint itself, which plainly states that the Agency discriminated against the grievant by “issu[ing] a proposed removal.”[40]  Moreover, even if the EEO complaint alleged that other Agency conduct contributed to the hostile-work-environment claim, the proposed removal need only be “central” to both the complaint and grievance for the complaint to bar the grievance.[41]  Accordingly, the Union’s contention does not establish that the EEO complaint and grievance concerned different matters for purposes of § 7121(d).[42]

 

Based on the above, we find that § 7121(d) of the Statute bars the grievance. Thus, we grant the Agency’s contrary-to-law exception and set aside the award.[43]

 

1. Order

 

                We set aside the award as contrary to § 7121(d) of the Statute.

 

 

 

 

 

 

 

 

 

 

 

Chairman DuBester, concurring:

 

                I agree that we have jurisdiction to resolve the parties’ exceptions to the Arbitrator’s award.  I also agree that it is appropriate to set aside the Arbitrator’s award as contrary to § 7121(d) of the Federal Service Labor-Management Relations Statute (the Statute).1  I write separately to explain how I reach that conclusion.

 

                The Union filed the grievance, which was signed by two individuals – a husband and wife.2  The grievance concerns several matters that are covered by the husband’s previously filed Equal Employment Opportunity (EEO) complaint.3  However, the grievance also concerns several other matters, including alleged violations pertaining to the wife, who was not an EEO complainant.4  As the grievance includes matters and an individual that were not involved in the EEO complaint, I would not find that the EEO complaint bars the grievance in its entirety.

 

                Nevertheless, the Arbitrator limited the scope of his review to the Agency’s issuance of a proposed removal to the husband.5  That matter was clearly covered by the husband’s prior EEO complaint.6  Thus, § 7121(d) of the Statute barred the Arbitrator from addressing that matter, and the award is deficient for that reason.

 

                Accordingly, I concur.