[ v02 p523 ]
02:0523(71)CA
The decision of the Authority follows:
2 FLRA No. 71
INTERNAL REVENUE SERVICE
AUSTIN DISTRICT
AUSTIN, TEXAS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
(NTEU) AND NTEU CHAPTER 52
Complainant
Assistant Secretary
Case No. 63-8838(CA)
DECISION AND ORDER
ON MARCH 23, 1979, ADMINISTRATIVE LAW JUDGE JOSEPH A. MATERA ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. THEREAFTER, BOTH PARTIES FILED EXCEPTIONS
WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741,JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE EXCEPTIONS FILED BY THE PARTIES, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS ONLY TO THE EXTENT CONSISTENT HEREWITH. /1/
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD NOT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER WHEN IT HELD IN ABEYANCE
THE GRIEVANCE OF A BARGAINING UNIT EMPLOYEE PENDING THE OUTCOME OF A
FEDERAL COURT LAWSUIT BROUGHT UNDER THE EQUAL EMPLOYMENT OPPORTUNITY
ACT
OF 1972 /2/ (EEO ACT), A CASE BASED ON ESSENTIALLY THE SAME FACTS AS THE
GRIEVANCE. IN REACHING THIS CONCLUSION, HE FOUND, AMONG OTHER THINGS,
THAT THE RESPONDENT ACTED BASED ON A GOOD FAITH BELIEF THAT IT WAS
PROCEEDING IN ACCORDANCE WITH PAST POLICY AND PRACTICE, AND ITS ACTION
WAS IN NO WAY INTENDED TO OBSTRUCT THE NEGOTIATED GRIEVANCE PROCEDURE.
THE ALJ NOTED THAT THE RESPONDENT REPEATEDLY INDICATED ITS WILLINGNESS
TO PROCEED WITH THE GRIEVANCE ONCE THE EEO MATTER WAS RESOLVED.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, HOWEVER, THE AUTHORITY
CONCLUDES THAT THE RESPONDENT'S CONDUCT WAS VIOLATIVE OF THE ORDER. /3/
UNDER THE EEO ACT, A FEDERAL EMPLOYEE MAY CONCURRENTLY PURSUE AN EEO
COMPLAINT BOTH THROUGH AGENCY PROCEDURES AND IN UNITED STATES DISTRICT
COURT /4/ AND THE COURT ACTS INDEPENDENTLY OF THE ADMINISTRATIVE
PROCESS. /5/ THE PREVIOUS PRACTICE OF THE PARTIES HEREIN WAS TO HOLD
CONTRACTUAL GRIEVANCES IN ABEYANCE WHILE RELATED MATTERS WERE BEING
PROCESSED THROUGH THE AGENCY'S INTERNAL EEO PROCEDURES. THIS CASE
INVOLVES THE RESPONDENT'S EXTENSION OF SUCH PRACTICE TO INCLUDE THE
HOLDING OF A CONTRACTUAL GRIEVANCE IN ABEYANCE WHILE RELATED EEO MATTERS
WERE BEING PROCESSED IN A UNITED STATES DISTRICT COURT. THE AUTHORITY
VIEWS THIS EXTENSION OF THE EXISTING PRACTICE AS A UNILATERAL CHANGE IN
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS THAT HAD NO BASIS IN PAST PRACTICE AND, THUS, A VIOLATION OF
SECTION 19(A)(1) AND (6) OF THE ORDER. /6/ ACCORDINGLY, CONSISTENT WITH
THIS DECISION, THE AUTHORITY HEREBY ISSUES THE FOLLOWING ORDER: /7/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE INTERNAL REVENUE SERVICE, AUSTIN DISTRICT, AUSTIN, TEXAS SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO PROCEED TO STEP 4, AND ADDITIONAL STEPS, IF
NECESSARY, OF THE GRIEVANCE
PROCEDURE SET FORTH IN THE PARTIES' NEGOTIATED AGREEMENT EFFECTIVE
MAY 3, 1974, ON THE
GRIEVANCE OF MAY 20, 1976, WHICH SOUGHT TO PREVENT THE USE OF AN
UNFAVORABLE APPRAISAL RATING
IN AN EMPLOYEE PROMOTION ACTION.
(B) UNILATERALLY CHANGING ESTABLISHED PRACTICES REGARDING THE
PROCESSING OF CONTRACTUAL
GRIEVANCES DURING THE PENDENCY OF RELATED INTERNAL AGENCY EEO
PROCEDURES TO INCLUDE MATTERS
BEFORE UNITED STATES DISTRICT COURTS WITHOUT FIRST NOTIFYING THE
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 52, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS,
ON SUCH CHANGES IN PRACTICE.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
52, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, NEGOTIATE, TO THE EXTENT
CONSONANT WITH LAW AND
REGULATIONS, CONCERNING ANY CHANGES IN ESTABLISHED PRACTICES
REGARDING THE PROCESSING OF
CONTRACTUAL GRIEVANCES DURING THE PENDENCY OF RELATED INTERNAL AGENCY
EEO PROCEDURES.
(B) UPON REQUEST, PROCEED TO STEP 4, AND SUCCEEDING STEPS, IF
NECESSARY, OF THE GRIEVANCE
PROCEDURE SET FORTH IN THE PARTIES NEGOTIATED AGREEMENT EFFECTIVE MAY
3, 1974, ON THE
GRIEVANCE OF MAY 20, 1976, WHICH SOUGHT TO PREVENT THE USE OF AN
UNFAVORABLE APPRAISAL RATING
IN AN EMPLOYEE PROMOTION ACTION.
(C) POST AT ITS FACILITY AT THE AUSTIN DISTRICT, AUSTIN, TEXAS,
COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL
LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
DISTRICT DIRECTOR AND SHALL
BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE
DISTRICT DIRECTOR SHALL TAKE REASONABLE STEPS TO ENSURE THAT SUCH
NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO PROCEED TO STEP 4, AND ADDITIONAL STEPS, IF
NECESSARY, OF THE GRIEVANCE PROCEDURE SET FORTH IN THE PARTIES'
NEGOTIATED AGREEMENT EFFECTIVE MAY 3, 1974, ON THE GRIEVANCE OF MAY 20,
1976, WHICH SOUGHT TO PREVENT THE USE OF AN UNFAVORABLE APPRAISAL RATING
IN AN EMPLOYEE PROMOTION ACTION.
WE WILL NOT CHANGE ESTABLISHED PRACTICES WITH REGARD TO THE
PROCESSING OF CONTRACTUAL GRIEVANCES DURING THE PENDENCY OF RELATED
INTERNAL AGENCY EEO PROCEDURES WITHOUT FIRST NOTIFYING THE NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER 52, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON SUCH CHANGES IN PRACTICE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 52, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES,
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING
ANY CHANGES IN ESTABLISHED PRACTICES REGARDING THE PROCESSING OF
CONTRACTUAL GRIEVANCES DURING THE PENDENCY OF RELATED INTERNAL AGENCY
EEO PROCEDURES.
WE WILL, UPON REQUEST, PROCEED TO STEP 4, AND SUCCEEDING STEPS, IF
NECESSARY, OF THE GRIEVANCE PROCEDURE SET FORTH IN OUR NEGOTIATED
AGREEMENT, EFFECTIVE MAY 3, 1974, ON THE GRIEVANCE OF MAY 20, 1976,
WHICH SOUGHT TO PREVENT THE USE OF AN UNFAVORABLE APPRAISAL RATING IN AN
EMPLOYEE PROMOTION ACTION.
(AGENCY OR ACTIVITY)
DATED: . . . BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: DOWNTOWN POST OFFICE STATION, BRYAN AND ERVAY STREETS, P.
O. BOX 2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS: (214)
767 4996.
THOMAS L. SELF, ATTORNEY AT LAW
GENERAL LEGAL SERVICES
OFFICE OF REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
ROOM 12-D, 27 1100 COMMERCE STREET
DALLAS, TEXAS 78242
BARBARA KELLY, TECHNICAL REPRESENTATIVE
LABOR RELATIONS SPECIALIST
AUSTIN DISTRICT
INTERNAL REVENUE SERVICE
AUSTIN, TEXAS
FOR THE RESPONDENT
B. CRAIG DEATS, ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 104, 300 E. HUNTLAND DRIVE
AUSTIN, TEXAS 78752
HENRY H. ROBINSON, ASSOCIATE GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 104, 300 E. HUNTLAND DRIVE
AUSTIN, TEXAS 78752
FOR THE COMPLAINANT
BEFORE: JOSEPH A. MATERA
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON A COMPLAINT ISSUED ON DECEMBER 13,
1978, BY THE REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES
ADMINISTRATION OF THE U.S. DEPARTMENT OF LABOR, KANSAS CITY REGION, A
HEARING IN THIS MATTER WAS CONDUCTED ON JANUARY 25, 1979, IN AUSTIN,
TEXAS. THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED (HEREINAFTER CALLED ORDER), BY THE FILING OF A COMPLAINT ON
OCTOBER 2, 1978, BY VINCENT L. CONNERY, NATIONAL PRESIDENT, NATIONAL
TREASURY EMPLOYEES UNION AND NTEU, CHAPTER 52 (HEREINAFTER CALLED
UNION), AGAINST THE INTERNAL REVENUE SERVICE, AUSTIN DISTRICT
(HEREINAFTER CALLED AGENCY), PURSUANT TO 29 C.F.R. 203.4.
THIS DECISION IS ISSUED PURSUANT TO TRANSITION RULES AND REGULATIONS,
FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979, PAGES 7-8, IN THE
NAME OF THE FEDERAL LABOR RELATIONS AUTHORITY. IN ACCORDANCE WITH
SECTION 2400.2(5 C.F.R. 2400.2) OF THE TRANSITION RULES AND REGULATIONS,
IT SHALL BE PROCESSED BY THE AUTHORITY IN ACCORDANCE WITH THE RULES AND
REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS,
TITLE 29, CODE OF FEDERAL REGULATIONS, PART 201, ET SEQ., EXCEPT THAT
THE WORD "AUTHORITY" SHALL BE SUBSTITUTED WHEREVER THE WORDS "ASSISTANT
SECRETARY" APPEAR IN THE RULES AND REGULATIONS OF THE OFFICE OF THE
ASSISTANT SECRETARY.
THE AFORESAID COMPLAINT CHARGED A VIOLATION OF SECTIONS 19(A)(1) AND
(6) OF THE ORDER AS A RESULT OF THE ALLEGED REFUSAL OF THE AGENCY TO
COMPLY WITH THE GRIEVANCE PROCEDURE OF A MULTI-DISTRICT AGREEMENT
BETWEEN THE PARTIES AND ALSO AN ALLEGED CHANGE IN TERMS AND CONDITIONS
OF EMPLOYMENT BY THE AGENCY WITHOUT PRIOR CONSULTATION WITH THE UNION.
THE PARTIES WERE FULLY REPRESENTED AT THE HEARING BY HIGHLY COMPETENT
COUNSEL WHO WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE
EVIDENCE AND TO EXAMINE AND CROSS-EXAMINE WITNESSES. THEREAFTER, BOTH
PARTIES FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
A MOTION TO CORRECT THE TRANSCRIPT WAS FILED BY COUNSEL FOR THE
AGENCY WITH ITS POST-HEARING BRIEF, IN ACCORDANCE WITH 29 C.F.R.
203.19(A)(1), ET SEQ. THE MOTION IS GRANTED AS TO THE PROPOSED
CORRECTIONS ON PAGES 2, 4, 21, 23, 63, 196 AND 261. THESE PROPOSED
CORRECTIONS ARE GENERALLY SELF-EVIDENT AND DO NOT CHANGE THE CONTEXT OF
ANY PART OF THE TRANSCRIPT IN WHICH THEY APPEAR. THE MOTION IS DENIED
AS TO THE PROPOSED CORRECTIONS ON PAGES 60, 62 AND 171. THE TRANSCRIPT
APPEARS TO REFLECT ACCURATELY THE ACTUAL TERMS USED IN THE ACTIVE
QUESTIONING OF THE WITNESSES, AND AN ANSWER GIVEN ON P. 171, ALTHOUGH
PRECISE EXPRESSION MAY NOT HAVE BEEN INTENDED. TO CHANGE THE TEXT OF
THESE QUESTIONS IN ANY WAY WOULD REQUIRE THAT THE WITNESSES HAVE AN
OPPORTUNITY TO ALSO REPHRASE THEIR ANSWERS. IN THE TOTAL CONTEXT OF THE
TRANSCRIPT I DO NOT FIND THIS TO BE NECESSARY.
UPON THE ENTIRE RECORD IN THIS CASE, AND FROM OBSERVATIONS OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND
DOCUMENTARY EVIDENCE ADDUCED AT THE HEARING I MAKE THE FOLLOWING
FINDINGS OF FACT AND CONCLUSIONS OF LAW.
FINDINGS OF FACT
THE UNION HEREIN WAS AT ALL TIMES MATERIAL HERETO THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE OF CERTAIN EMPLOYEES OF THE AGENCY.
AT ALL SUCH TIMES AND PARTICULARLY DURING MAY 1976, THE PARTIES
PROCESSED ALL GRIEVANCES INCLUDING THE GRIEVANCE RELEVANT HEREIN UNDER
AN AGREEMENT ENTITLED MULTI-DISTRICT AGREEMENT II (JOINT EXHIBIT 1,
HEREINAFTER REFERRED TO AS MDA II). ON MAY 20, 1976, BARGAINING UNIT
EMPLOYEE HARVEY MALYN (HEREINAFTER REFERRED TO AS GRIEVANT), EMPLOYED AS
AN ESTATE TAX ATTORNEY FOR THE AGENCY, FILED A CONTRACT GRIEVANCE UNDER
THIS AGREEMENT. THIS GRIEVANCE RELATED TO AN APRIL 23, 1976, PROMOTION
APPRAISAL AND ITS SUBSEQUENT USE IN A PROMOTION ACTION INVOLVING A
HIGHER GRADE ESTATE TAX ATTORNEY POSITION FOR WHICH THE CLAIMANT WAS
APPLYING. ON JUNE 1, 1976, A STEP 1 MEETING WAS HELD IN RESPECT TO THIS
CONTRACT GRIEVANCE UNDER ARTICLE 35, SECTION 7 OF MDA II AND ON JUNE 4,
1976, A DECISION DENYING THE GRIEVANCE WAS ISSUED BY THE AGENCY. ON
JUNE 9, 1976, AFTER LEARNING HE HAD NOT BEEN SELECTED FOR PROMOTION TO
THE HIGHER GRADE POSITION, AND THAT A WOMAN HAD BEEN CHOSEN, GRIEVANT,
THROUGH OTHER THAN UNION REPRESENTATION, INSTITUTED AN EQUAL EMPLOYMENT
OPPORTUNITY (EEO) CHARGE AND COMPLAINT AGAINST HIS SUPERVISOR AND AGENCY
MANAGEMENT. HE THEREAFTER MADE CONTACT WITH AN EEO COUNSELOR (JT. EXH.
22, P. 3).
ON JUNE 10, 1976, THE UNION STEWARD PROCESSING GRIEVANT'S CONTRACT
GRIEVANCE APPEALED TO STEP 2 UNDER THE NEGOTIATED GRIEVANCE PROCEDURE
AFTER RECEIVING NOTICE OF THE STEP 1 DENIAL BY THE AGENCY. IN HIS
APPEAL LETTER THE UNION STEWARD ALSO MADE THE FOLLOWING REQUEST:
SINCE THE FIRST STEP HEARING, MR. MALYN HAS FILED A GRIEVANCE WITH
THE REGIONAL EQUAL
EMPLOYMENT OPPORTUNITY OFFICER WITH REFERENCE TO THE SUBJECT MATTER
OF THE
GRIEVANCE. THEREFORE, IT IS REQUESTED THAT ANY MEETINGS TO HEAR THIS
APPEAL BE POSTPONED
UNTIL THE EEO GRIEVANCE IS DISPOSED OF. (JT. EXH. 4.)
THIS UNION REQUEST ON BEHALF OF GRIEVANT WAS ACKNOWLEDGED AND ACCEDED
TO BY THE AGENCY, ITS REPRESENTATIVE INDICATING THAT A SECOND STEP
MEETING OF GRIEVANT'S CONTRACT GRIEVANCE WOULD BE SET UP "AFTER YOU
NOTIFY ME THE EEO GRIEVANCE HAS BEEN DISPOSED OF." (JT. EXH. 5.)
GRIEVANT THEREAFTER PURSUED HIS EEO REMEDIES, FILING A FORMAL
COMPLAINT OF DISCRIMINATION AND REPRISAL BASED IN PART UPON THE ALLEGED
UNFAIR EVALUATION REFERRED TO IN HIS CONTRACT GRIEVANCE AS WELL AS ON A
CHARGE OF SEX BIAS (JT. EXH. 6A, 6B). GRIEVANT'S EEO COMPLAINT WAS
ADMINISTRATIVELY PROCESSED IN ACCORDANCE WITH THE FEDERAL STATUTE, 42
U.S.C.A. 2000E-16(A),ET SEQ., AND THE IMPLEMENTING REGULATIONS, 5
C.F.R. 713,ET SEQ., INCLUDING AN INVESTIGATION AND PROPOSED DISPOSITION
BY AN AGENCY EEO OFFICER AND A HEARING BEFORE A CIVIL SERVICE COMPLAINT
EXAMINER. BOTH OF THOSE OFFICIALS FOUND NO DISCRIMINATION AND
RECOMMENDED DISMISSAL OF THE COMPLAINT. ON JANUARY 27, 1978, THE ACTING
DIRECTOR, EEO PROGRAMS, DEPARTMENT OF THE TREASURY, IN HIS STATUTORY
ROLE ISSUED THE FINAL DECISION OF THE DEPARTMENT OF THE TREASURY
PURSUANT TO 5 C.F.R. 713.221, ADOPTING THE RECOMMENDED DECISION OF THE
CIVIL SERVICE COMMISSION FINDING NO DISCRIMINATION. THEREAFTER, ON
FEBRUARY 7, 1978, GRIEVANT NOTIFIED THE AGENCY THAT HE WISHED TO REOPEN
HIS MAY 20, 1976, CONTRACT GRIEVANCE AT THE STEP 2 MEETING LEVEL. SUCH
A MEETING WAS SCHEDULED AND HELD ON MARCH 7, 1978, PURSUANT TO ARTICLE
35, SECTION 7 OF MDA II AND ON MARCH 13, 1978, A STEP 2 DECISION WAS
ISSUED DENYING THE CONTRACT GRIEVANCE. A TIMELY APPEAL BY GRIEVANT TO
STEP 3 WAS PROMPTLY HEARD BY THE AGENCY ON MARCH 30, 1978. A STEP 3
DECISION WAS ISSUED BY THE AGENCY, AGAIN DENYING THE CONTRACT GRIEVANCE.
THE UNION ON APRIL 10, 1978, THEN APPEALED THE GRIEVANCE TO STEP 4 AS
PROVIDED IN THE CONTRACT.
ON APRIL 18, 1978, GRIEVANT, THROUGH PRIVATE COUNSEL, THEN PURSUED
HIS EEO REMEDIES TO THE NEXT STATUTORY LEVEL BY FILING SUIT IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, AGAINST
THE COMMISSIONER OF IRS. THIS SUIT ALLEGES DISCRIMINATION BASED ON SEX
RESULTING IN NON-SELECTION FOR THE PROMOTION IN QUESTION. THE ACTION
WAS ALSO BASED IN PART UPON ALLEGATIONS OF DOWN GRADING OF GRIEVANT ON
PERFORMANCE EVALUATIONS, IN RETALIATION FOR THIS ASSERTION OF RIGHTS
UNDER THE EEO ACT (JT. EXH. 13).
SHORTLY AFTER THIS SUIT WAS FILED MR. GREER, THE AGENCY
REPRESENTATIVE ASSIGNED TO CONDUCT THE STEP 4 LEVEL CONTRACT GRIEVANCE
MEETING, LEARNED OF THIS LAW SUIT THROUGH ANOTHER AGENCY MANAGER. HE
THEN SOUGHT THE ADVICE OF THE AGENCY'S LABOR RELATIONS SPECIALIST AS TO
FURTHER PROCESSING OF THE CONTRACT GRIEVANCE AND WAS ADVISED THAT "IF IT
INVOLVED THE SAME SUBJECT MATTER IT WOULD BE PROPER TO WITHHOLD
PROCESSING OF THE GRIEVANCE." (TR. 119.) THIS ACTION, HE TESTIFIED, WAS
BASED UPON PAST PRACTICE OF THE AUSTIN DISTRICT OF THE INTERNAL REVENUE
SERVICE, THAT EEO COMPLAINTS AND INVESTIGATIONS TOOK PRECEDENCE OVER
CONTRACT GRIEVANCES. AS A RESULT ANY CONTRACT GRIEVANCE, HE TESTIFIED,
WOULD BE HELD IN ABEYANCE UNTIL THE EEO INVESTIGATIONS AND RESOLUTION OF
THE EEO MATTER WAS SETTLED (TR. 121, 125). A SECOND REASON GIVEN BY MR.
GREER FOR HIS ACTION, IN ADDITION TO THAT OF PAST PRACTICE AND POLICY,
WAS THAT FROM HIS PREVIOUS UNDERSTANDING IT WAS NOT APPROPRIATE TO DEAL
WITH CONTRACT ISSUES WHICH WERE ALSO UNDER THE JURISDICTION OF A COURT
ABSENT THE PERSONAL INVOLVEMENT OF THE UNITED STATES ATTORNEY (TR. 121).
AFTER SPEAKING WITH HIS LABOR RELATIONS SPECIALIST MR. GREER HAD THE
COURT SUIT READ TO HIM. HE THEREAFTER CONCLUDED THAT IT DID INVOLVE THE
SAME SUBJECT MATTER AS THE CONTRACT GRIEVANCE. HE INFORMED THE UNION
PRESIDENT, MR. SAM, BY PHONE OF HIS CONCLUSION AND INTENT TO HOLD THE
CONTRACT GRIEVANCE IN ABEYANCE. HE CONFIRMED THIS BY LETTER OF APRIL
26, 1978. HE ALSO SUPPLIED MR. SAM WITH A COPY OF THE COURT SUIT AROUND
THE SAME TIME. HE TESTIFIED THAT MR. SAM DID NOT DISAGREE WITH OR
OBJECT TO HIS PROPOSED ACTION OF HOLDING THE CONTRACT GRIEVANCE IN
ABEYANCE (TR. 121). MR. SAM DID NOT RECALL THE TELEPHONE CONVERSATION
OR WHETHER OR NOT HE SPECIFICALLY DISAGREED WITH MR. GREER AT THAT TIME
REGARDING THE HOLDING OF THE MATTER IN ABEYANCE, AFTER RECEIVING THE
LETTER CONFIRMING THE ALLEGED TELEPHONE CONVERSATION.
FOLLOWING THE HOLDING OF THE CONTRACT GRIEVANCE IN ABEYANCE, THE
GRIEVANT ON MAY 8, 1978, FILED A NEW EEO REPRISAL CHARGE WITH THE
REGIONAL INTERNAL REVENUE SERVICE EEO OFFICER FOR REFUSAL TO PROCESS HIS
MAY 20, 1976, CONTRACT GRIEVANCE AT STEP 4. THIS NEW EEO CHARGE WAS
ULTIMATELY REJECTED AS NOT WITHIN THE PURVIEW OF THE EEO REGULATIONS.
THE GRIEVANT, FOLLOWING THE HOLDING OF HIS CONTRACT GRIEVANCE IN
ABEYANCE, ALSO INSTITUTED THROUGH THE UNION ON JULY 26, 1978, A
PRE-COMPLAINT OF AN UNFAIR LABOR PRACTICE CHARGE WITH THE AGENCY,
CONTENDING THAT RESPONDENT HAD VIOLATED SECTIONS 19(A)(1) AND 19(A)(6)
OF THE ORDER. FOLLOWING A DENIAL OF THE CHARGE BY THE AGENCY THE FORMAL
UNFAIR LABOR PRACTICE COMPLAINT, HEREIN BEING CONSIDERED, WAS FILED ON
OCTOBER 2, 1978.
THE EEO SUIT FILED BY GRIEVANT IN THE MEANTIME HAS BEEN ANSWERED BY
THE INTERNAL REVENUE SERVICE AND GRIEVANT THROUGH HIS PRIVATE COUNSEL
HAS FILED A SECOND AMENDED COMPLAINT. THE SUIT REMAINS PENDING.
CONCLUSIONS OF LAW
THOSE PORTIONS OF SECTION 19(A) OF THE ORDER WHICH ARE PERTINENT TO
THE ISSUES RAISED HEREIN PROVIDE THAT AGENCY MANAGEMENT SHALL NOT (1)
INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE
RIGHTS AS ASSURED BY THE ORDER, OR (6) REFUSE TO CONSULT, CONFER OR
NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY THE ORDER. IN THIS
RESPECT IT IS ESTABLISHED THAT INTERFERENCE WITH THE FILING OR
PROCESSING OF GRIEVANCES MAY BE VIOLATIVE OF THE ABOVE-CITED SECTIONS OF
THE ORDER. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, NEW YORK AIR ROUTE TRAFFIC CONTROL CENTER, A/SLMR NO.
1178. WHERE SUCH A COURSE OF ACTION IS INITIATED BY A PARTY WHICH
CLEARLY CONTRAVENES THE AGREED UPON TERMS OF A NEGOTIATED AGREEMENT,
WITHOUT PRIOR CONSULTATION, THE BARGAINING REQUIREMENTS OF THE ORDER
HAVE NOT BEEN MET. VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH
CAROLINA, A/SLMR NO. 87.
THE UNION CHARGES JUST A VIOLATION OF THE ORDER BY THE AGENCY IN ITS
HOLDING IN ABEYANCE, AND REFUSAL TO HEAR, GRIEVANT'S CONTRACT GRIEVANCE
ON THE STEP 4 LEVEL. THE UNION ALSO CHARGES A VIOLATION OF THE ORDER BY
THE AGENCY IN ITS FAILURE TO PROVIDE ADVANCE NOTIFICATION TO THE UNION
OF AN ALLEGED CHANGED PERSONNEL POLICY IN RESPECT TO THE HOLDING OF
CONTRACT GRIEVANCES IN ABEYANCE.
ADDRESSING HIMSELF TO THIS PAST AGENCY POLICY CONCERNING THE HOLDING
OF GRIEVANCES IN ABEYANCE, THE PRESIDENT OF CHAPTER 52 OF THE UNION, WHO
HAD BEEN EMPLOYED BY THE AGENCY FOR SOME 22 AND A HALF YEARS, TESTIFIED
IN RESPECT TO THE AGENCY PRACTICE IN QUESTION:
JUDGE MATERA: UNDER THOSE CIRCUMSTANCES, AS YOU SAY, (DURING THE
ADMINISTRATIVE PROCESSING
OF AN EEO COMPLAINT), UNDER THOSE CIRCUMSTANCES THE ORDINARY PRACTICE
THEN WAS TO HOLD THE
GRIEVANCE IN ABEYANCE PENDING THE OUTCOME OF THE EEO ADMINISTRATIVE
COMPLAINT?
THE WITNESS: ABSOLUTELY. I HAVE AN AGENCY GRIEVANCE NOW THAT'S BEEN
HELD IN ABEYANCE IN
EXCESS OF TWO YEARS NOW. (TR. P. 109.)
THUS, THERE IS NO QUESTION THAT THE AGENCY POLICY OF HOLDING CONTRACT
GRIEVANCES IN ABEYANCE PENDING THE OUTCOME OF AN "ADMINISTRATIVE
COMPLAINT" WAS WELL ESTABLISHED AS TO ALL PARTIES. (SEE ALSO TR. PP.
49, 76, 105, 169, 170, 198 AND 252.) THIS DELAY APPARENTLY INVOLVED ON
OCCASION SUBSTANTIAL PERIODS OF TIME. HOWEVER, IT IS THE POSITION OF
THE COMPLAINANT THAT THIS POLICY HAD NO RELEVANCY TO AN EEO COMPLAINT
SHARING THE SAME SUBJECT MATTER AS A CONTRACT GRIEVANCE, WHICH HAD
PROCEEDED BEYOND AN ADMINISTRATIVE STAGE TO THE LEVEL OF A COURT ACTION
AS IN THE INSTANT CASE.
AGENCY MANAGEMENT PERSONNEL AND THE LABOR RELATIONS SPECIALIST FOR
THE RESPONDENT MAINTAINED AT THE HEARING THAT AGENCY POLICY AND PRACTICE
HAVE BEEN CONSISTENT IN PLACING CONTRACT GRIEVANCES IN ABEYANCE DURING
THE PENDENCY OF AN EEO COMPLAINT INVOLVING THE SAME SUBJECT MATTER.
WHILE IT APPARENTLY WAS A MATTER OF FIRST PRECEDENT IN THE AUSTIN
DISTRICT TO HAVE AN EEO COMPLAINT AT THE LEVEL OF A COURT PROCEEDING
WHILE A CONTRACT GRIEVANCE WAS PENDING, IT NONETHELESS APPEARED
CONSISTENT TO AGENCY MANAGEMENT TO APPLY THE SAME PAST POLICY AND
PRACTICE TO THIS SITUATION. MR. GREER TESTIFIED THAT HIS PERSONAL
EXAMINATION OF THE COURT DOCUMENTS CONVINCED HIM THAT IT AROSE OUT OF
THE SAME SUBJECT MATTER AS THE CONTRACT GRIEVANCE. HE THEREFORE FELT HE
WAS ACTING IN A MANNER CONSISTENT WITH PAST POLICY AND PRACTICE IN
PLACING THE FOURTH LEVEL CONTRACT GRIEVANCE IN ABEYANCE.
I CONCLUDE FROM THE EVIDENCE BEFORE ME THAT MR. GREER, ON BEHALF OF
THE AGENCY, WAS MOTIVATED BY A GOOD FAITH BELIEF THAT HE WAS ACTING IN
ACCORDANCE WITH PAST PRACTICE AND PROCEDURE OF THE AGENCY IN PLACING THE
CONTRACT GRIEVANCE IN ABEYANCE. THE CONCLUSIONS REACHED BY MR. GREER
THAT THE EEO COURT SUIT AND THE CONTRACT GRIEVANCE WERE SUBSTANTIALLY
THE SAME, REQUIRING HIM TO PLACE THE CONTRACT GRIEVANCE IN ABEYANCE, ARE
BOTH REASONABLE AND SUPPORTED BY THE EVIDENCE OF RECORD. FURTHER
CREDENCE IS GIVEN TO THIS AGENCY ACTION BY THE FACT THAT MR. SAM, THE
UNION PRESIDENT, VOICED NO OBJECTION WHEN INFORMED BY MR. GREER, BOTH BY
A PHONE CALL AND A CONFIRMING LETTER, OF HIS INTENTIONS. /8/
A REVIEW OF THE RECORD IN THIS CASE, CAREFULLY DOCUMENTED BY BOTH
PARTIES HEREIN, CONVINCES ME THAT THERE WAS NO DELIBERATE INTENT BY THE
AGENCY TO EVADE OR IGNORE THE CLEAR GRIEVANCE PROCEDURES ESTABLISHED IN
THE NEGOTIATED AGREEMENT. THE EXPRESSED WILLINGNESS OF THE AGENCY TO
PROMPTLY CONDUCT THE VARIOUS LEVEL GRIEVANCE MEETINGS UNDER THE
CONTRACT, UPON CONCLUSION OF THE EEO MATTER, WAS CLEAR. THERE WAS
PROMPT REINSTITUTION OF THE GRIEVANCE MACHINERY AT THE STEP 2 LEVEL AT
GRIEVANT'S REQUEST AFTER THE EEO PROCEEDING HAD REACHED WHAT WAS THOUGHT
TO BE A CONCLUSIVE STAGE (JT. EXH. 22, STIPULATIONS 11, 12, 13, 14). AT
THE TRIAL OF THIS MATTER THERE WAS A FURTHER DECLARATION BY MR. GREER OF
THE AGENCY'S WILLINGNESS AND INTENTION TO CONDUCT THE STEP 4 LEVEL
MEETING UNDER THE CONTRACT UPON CONCLUSION OF THE PROCESSING OF THE EEO
COMPLAINT (TR. 124).
THE FINDINGS REACHED HEREIN ARE IN ACCORD WITH THE CONCLUSIONS
REACHED BY THE ASSISTANT SECRETARY IN AT LEAST TWO SEPARATE MATTERS. IN
DEPARTMENT OF HEW, SOCIAL SECURITY ADMINISTRATION, DISABILITY INSURANCE
PROGRAM STAFF, A/SLMR NO. 1128, THE AGENCY REFUSED TO PROCESS A CONTRACT
GRIEVANCE BEYOND A CERTAIN LEVEL, PENDING RESOLUTION OF A RELATED EEO
PROCEEDING. RELIANCE WAS PLACED BY THE AGENCY IN THAT CASE ON SECTION
13(A) OF THE ORDER. AS IN THIS CASE, IT WAS NOTED THAT THE AGENCY HAD
INDICATED ITS WILLINGNESS TO PROCEED ONCE THE EEO MATTER HAD BEEN
RESOLVED. THE ASSISTANT SECRETARY AGREED WITH THE FINDINGS OF THE
ADMINISTRATIVE LAW JUDGE THAT THERE WAS NO SHOWING OF BAD FAITH BY THE
AGENCY, OR THAT THERE HAD BEEN ANY ATTEMPT TO FRUSTRATE THE
GRIEVANCE/ARBITRATION MACHINERY.
SIMILARLY, IN DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
MILWAUKEE DISTRICT OFFICE, CASE NO. 51-3911(CA), THE AGENCY HELD IN
ABEYANCE FURTHER PROCESSING OF CERTAIN GRIEVANCES PENDING A DECISION ON
EEO COMPLAINTS. THE GRIEVANCE INVOLVED IN PART THE SAME SUBJECT MATTER
AS THE EEO COMPLAINTS. THE AGENCY BASED ITS ACTION IN THAT CASE ON
CERTAIN PROCEDURES CONTAINED IN THE TREASURY PERSONNEL MANUAL. THE
UNION ALLEGED, AS IT DOES IN THIS CASE, A VIOLATION OF SECTIONS 19(A)(1)
AND (6) OF THE ORDER. THE ACTING REGIONAL ADMINISTRATOR, IN DISMISSING
FOR FAILURE TO FIND ANY REASONABLE BASIS FOR THE COMPLAINT, STATED THAT
EVEN IF THE AGENCY ERRED IN ITS INTERPRETATION OF THE RELEVANT PERSONNEL
REGULATIONS, ITS CONDUCT WOULD CONSTITUTE ONLY A SIMPLE BREACH OF THE
PARTIES' NEGOTIATED AGREEMENT AND WOULD NOT RISE TO "THE LEVEL OF A
FLAGRANT AND DELIBERATE BREACH CONSTITUTING A UNILATERAL MODIFICATION OF
THE NEGOTIATED AGREEMENT." THIS DISPUTE, HE HELD, WAS PROPERLY A MATTER
FOR THE GRIEVANCE MACHINERY OF THE PARTIES' NEGOTIATED AGREEMENT RATHER
THAN AN UNFAIR LABOR PRACTICE PROCEDURE. THIS DISMISSAL OF THE
COMPLAINT BY THE REGIONAL ADMINISTRATOR WAS APPEALED TO THE FEDERAL
LABOR RELATIONS COUNCIL WHERE THE PETITION FOR REVIEW WAS DENIED. THE
COUNCIL FAILED TO FIND THAT THE DISMISSAL OF THE COMPLAINT WAS ARBITRARY
OR CAPRICIOUS, OR PRESENTED A MAJOR POLICY ISSUE. FLRC NO. 77A-135.
I FIND THEREFORE THAT THE COMPLAINANT UNION HAS FAILED TO MEET ITS
BURDEN OF ESTABLISHING A REASONABLE BASIS FOR THE COMPLAINT. I CONCLUDE
THAT THE ACTION BY THE AGENCY'S REPRESENTATIVE, MR. MR. GREER, OF
PLACING A CONTRACT GRIEVANCE IN ABEYANCE WAS BASED UPON HIS GOOD FAITH
BELIEF THAT HE WAS ACTING IN ACCORD WITH PAST POLICY AND PRACTICE
ACCEPTED BY BOTH THE AGENCY AND THE UNION. THERE IS NO EVIDENCE IN THE
RECORD TO SUGGEST THAT THIS ACTION WAS MOTIVATED EITHER BY GRIEVANT'S
UNION MEMBERSHIP OR FROM PAST GRIEVANCES AND COMPLAINTS FILED BY HIM
AGAINST THE AGENCY. /9/
I DO NOT DOUBT THE GOOD FAITH BELIEF OF THE PARTIES CONCERNING THEIR
OWN RESPECTIVE INTERPRETATIONS OF PAST POLICY AND PRACTICE IN RESPECT TO
HOLDING MATTERS IN ABEYANCE WHEN AN EEO COMPLAINT IS PENDING. WHETHER
THE POLICY TO HOLD IN ABEYANCE INCLUDES THE PENDING OF AN EEO MATTER
WHICH HAS REACHED THE LEVEL OF A FEDERAL COURT ACTION REMAINS SUBJECT TO
CLARIFICATION. HOWEVER, SUCH A CLARIFICATION OF DIFFERING AND ARGUABLE
INTERPRETATIONS RESPECTING THE IMPLEMENTATION OF A NEGOTIATED AGREEMENT
IS APPROPRIATELY RESOLVED WITHIN THE GRIEVANCE MACHINERY OF THIS
NEGOTIATED AGREEMENT. IT DOES NOT PROPERLY FALL WITHIN THE SCOPE OF THE
UNFAIR LABOR PRACTICE PROCEDURE OF THE ORDER. CF., DEPARTMENT OF THE
ARMY, A/SLMR NO. 624.
IT IS CONCLUDED THEREFORE UNDER THE TOTAL CIRCUMSTANCES OF THIS CASE
THAT THE AGENCY'S ACTION IN HOLDING THE GRIEVANT'S CONTRACT GRIEVANCE IN
ABEYANCE PENDING RESOLUTION OF HIS EEO COMPLAINT DID NOT CONSTITUTE A
CLEAR AND UNILATERAL BREACH OF THE NEGOTIATED AGREEMENT BETWEEN THE
PARTIES AND IT IS THEREFORE FOUND NOT TO BE VIOLATIVE OF SECTION
19(A)(1) AND (6) OF THE ORDER.
ORDER
THE COMPLAINT HEREIN IS HEREBY DISMISSED IN ITS ENTIRETY.
JOSEPH A. MATERA
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 23, 1979
SAN FRANCISCO, CALIFORNIA
JAM:VG
/1/ IN HIS RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW
JUDGE INADVERTENTLY REFERRED TO CHARLES R. SPEER, A REPRESENTATIVE OF
THE RESPONDENT, AS "MR. GREER." THIS INADVERTENCE IS HEREBY CORRECTED.
/2/ PUB. L. 92-261, 86 STAT. 103ET SEQ. (CODIFIED AT 42 U.S.C.
SECTION 2000(E)ET SEQ.).
/3/ SECTION 19(D) OF THE EXECUTIVE ORDER PROVIDES, IN PERTINENT PART,
"(I)SSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY
NOT BE RAISED UNDER THIS SECTION." IN VIEW OF THE FACT THAT THE AMENDED
EEO LAWSUIT DEALS WITH ALLEGED VIOLATIONS OF THE EEO ACT AND IN NO WAY
DEALS WITH THE UNFAIR LABOR PRACTICE ISSUES RAISED BY THE INSTANT
COMPLAINT, THE AUTHORITY CONCLUDES THAT SECTION 19(D) DOES NOT SERVE TO
BAR CONSIDERATION OF THE COMPLAINT UNDER THE UNFAIR LABOR PRACTICE
PROCEDURES OF THE ORDER.
/4/ "THE EXISTENCE OF CONCURRENT JURISDICTION IS APPARENTLY IMPLICIT
IN SECTION 2000(E)-5(F)(1)." GRUBBS V. BUTZ, 514 F.2D 1323, 1329 (D.C.
CIR. 1975).
/5/ SEE CHANDLER V. ROUDEBUSH, 425 U.S. 840(1976), IN WHICH THE
SUPREME COURT HELD THAT THE EEO ACT AFFORDS FEDERAL EMPLOYEES THE RIGHT
TO A TRIAL DE NOVO ON EMPLOYMENT DISCRIMINATION CLAIMS.
/6/ IT IS NOTED THAT THE TIME DELAYS INVOLVED IN HOLDING CONTRACTUAL
GRIEVANCES IN ABEYANCE BEYOND THE PERIOD OF AN AGENCY'S INTERNAL
PROCESSING OF EEO COMPLAINTS COULD SERVE TO DETER EMPLOYEES FROM
EXERCISING THEIR FUNDAMENTAL EXECUTIVE ORDER RIGHT TO FILE GRIEVANCES
UNDER NEGOTIATED PROCEDURES IRRESPECTIVE OF ANY APPARENT WILLINGNESS ON
THE PART OF AN AGENCY TO PROCESS THE GRIEVANCE AFTER THE RESOLUTION OF
THE EEO MATTER BY THE FEDERAL COURTS. COMPARE DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, DISABILITY
INSURANCE PROGRAM STAFF, CHICAGO, ILLINOIS, 8 A/SLMR 1096, A/SLMR NO.
1128(1978), IN WHICH THE ASSISTANT SECRETARY CONCLUDED THAT THERE WAS NO
VIOLATION OF THE ORDER WHERE THE RESPONDENT'S WILLINGNESS TO PROCESS A
GRIEVANCE AFTER THE INTERNAL PROCESSING OF A RELATED EEO COMPLAINT
MITIGATED ANY FRUSTRATION OF THE GRIEVANCE/ARBITRATION MACHINERY.
/7/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/8/ THE AGENCY HEREIN COULD FURTHER HAVE BEEN CONVINCED OF THE "GOOD
FAITH" NATURE OF ITS ACTION BY THE FAILURE OF THE UNION TO EXERCISE A
FURTHER PROCEDURE AVAILABLE TO IT UNDER THE CONTRACT, THAT IS, OF
INVOKING ARBITRATION UNDER ARTICLE 56, SECTION 11, A PROCEDURE PERMITTED
UNDER MDA II WHEN THERE IS AN ALLEGED FAILURE BY THE EMPLOYER TO "MEET
ANY OF THE REQUIREMENTS OF THE PROCEDURE."
/9/ COUNSEL FOR THE AGENCY, IN ORAL ARGUMENT AND IN HIS BRIEF, ALSO
RELIES UPON SECTION 19(D) OF THE ORDER IN HIS ARGUMENT FOR DISMISSAL OF
THE UNFAIR LABOR PRACTICE CHARGE. HE ARGUES THAT THE STATUTORY APPEALS
PROCEDURE AVAILABLE TO GRIEVANT AS A RESULT OF HIS EEO CAUSE OF ACTION
IN FEDERAL DISTRICT COURT PRECLUDES THE PROCESSING OF THE UNFAIR LABOR
PRACTICE COMPLAINT IN ACCORDANCE WITH SECTION 19(D) OF THE ORDER.
THE AGENCY'S PRIMARY DEFENSE, AS WAS CLEAR FROM THE EVIDENCE AND
TESTIMONY AT TRIAL, WAS THE GOOD FAITH BELIEF THAT IT WAS APPLYING PAST
POLICY AND PRACTICE IN PLACING THE CONTRACT GRIEVANCE IN QUESTION IN
ABEYANCE. THERE WAS NO SPECIFIC RELIANCE, AS IN THE DEPARTMENT OF HEW,
SOCIAL SECURITY ADMINISTRATION CASE, SUPRA, ON ANY PARTICULAR SECTION OF
THE ORDER AT THE TIME THE AGENCY ACTION WAS TAKEN, BUT RATHER ON PAST
POLICY AND PRACTICE OF THE AGENCY. IN LIGHT OF MY FINDING THAT NO
UNFAIR LABOR PRACTICE IN VIOLATION OF SECTIONS 19(A)(1) AND (6) OCCURRED
IN THIS MATTER AS A RESULT OF THE INCIDENT IN QUESTION, I FIND IT
UNNECESSARY TO RULE UPON THIS ASSERTED DEFENSE BY THE AGENCY.