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FLRA LIMITING GRIEVANCE COVERAGE WHEN PRIOR EEO COMPLAINTS INCLUDE TANGENTIALLY-RELATED ISSUES

5 USC 7121(g) allows an employee to select one but not more than one remedy through an MSPB appeal, a grievance, an Individual Right of Action for whistleblowing reprisal; 5 USC 7121(d) requires an election between a grievance and an EEO complaint.

An employee may complain through the EEO process of a problem, e.g., a hostile environment, or a retaliatory investigation, and then grieve the later result of the environment or the investigation, e.g., a disciplinary action such as a short suspension. The suspension could not have been anticipated at the time of the initiation of the EEO process. Is the later grievance barred by the earlier EEO complaint?

The Authority says yes; reasonable people might disagree, arguing that it is unfair to bar a grievance on a personnel action that could not have been anticipated when an EEO complaint was filed before the personnel action was initiated.

An employee filed an EEO complaint about a hostile environment involving alleged stalking. The complaint was investigated. Based on information developed in the investigation, the agency suspended the employee for lack of candor during the investigation because the agency found no corroboration for the employee's allegations of a hostile environment. The employee grieved the suspension, challenging the agency's conclusions about lack of candor. An arbitrator sided with the grievant and concluded the suspension was retaliatory. FLRA reached the jurisdictional argument sua sponte when the agency filed exceptions that did not advance a jurisdictional challenge.

FLRA vacated the arbitration award because of an election of remedies, advancing the justification, over Member DuBester's dissent, that the "lack of candor" basis for the suspension that was grieved required examination of the legitimacy of the allegations or proof of the hostile environment alleged in the EEO complaint.

The FLRA's analysis is subject to question. 5 USC 7121(d) requires an election between the EEO process for a discriminatory prohibited personnel practice - a hostile environment - and use of the grievance process for that matter. The suspension was not the same matter, i.e., it did not duplicate the EEO complaint asserting a hostile environment evidenced by stalking. There may have been common factual elements requiring examination, but hostile environment asserted in the EEO process and "lack of candor" involved in the grieved suspension were not the same matters. So argued the dissenter, Member DuBester.

Dept. of Air Force, Warner Robins ALC and AFGE Local 987, 71 FLRA 758 (May 21, 2020) (Member DuBester dissenting): flra.gov/decisions/v71/71-146.html

FEDERAL CIRCUIT DECLINES TO EXTEND FLRA EVIDENTIARY PRIVILEGE TO UNION OFFICIAL'S COMMENTS TO BARGAINING UNIT EMPLOYEES

The appellant was terminated for reasons that included his alleged inappropriate comments about an agency supervisor made during a meeting between the appellant, as a union official, and a unit employee as they discussed union assistance. An MSPB AJ sustained the removal, involving several charges, not all of which were sustained. There were several points in the appeal to the circuit court. Significantly, the court said the Board properly admitted evidence of recorded conversations between the appellant and witnesses, when the witnesses (but not the appellant) consented to the OIG recordings. As to the privilege claimed by the appellant, a union official, concerning conversations with the unit employees (witnesses), the court noted that the FLRA's position under Dept. of Treasury, Customs Services and NTEU, 38 FLRA 1300 (1990), is that the privilege extends to the employee, and does not provide protection to the union representative.

Martin v. DHS, Fed. Cir. 2019-1578 (April 20, 2020): cafc.uscourts.gov/sites/default/files/opinions-orders/19-1578.Opinion.4-20-2020_1572692.pdf

FLRA DECLINES TO REVIEW EXCEPTIONS TO ARBITRATOR'S EMAILED PRELIMINARY RULING TO RESERVE DETERMINATION OF ARBITRABILITY DISPUTE UNTIL HEARING ON THE MERITS OF THE GRIEVANCE

The dispute was over an official time claim. Before the arbitration hearing, the agency submitted a brief on arbitrability, arguing that the case as barred by a prior ULP charge. Emails flew back and forth among the parties (the union objected to a preliminary ruling) and the arbitrator, who responded by email that he would not issue an interim ruling before the scheduled hearing. On exceptions to the emailed ruling, FLRA decided that there was no award for it to review. An arbitration award would require more formality than en email, since:

If we were to elevate the status of such an email that contains almost no substance, the Authority will routinely be called on to resolve exceptions to all manner of messages whether exchanged by email, text, voicemail, or even Twitter. Such a result certainly will not "facilitate[] and encourage[] the amicable settlement of disputes" or promote "an effective and efficient Government.

VA, Gulf Coast Healthcare System and AFGE Local 1045, 71 FLRA 752 (May 19, 2020): flra.gov/decisions/v71/71-144.html