33:0340(42)AR - - HHS and AFGE - - 1988 FLRAdec AR - - v33 p340



[ v33 p340 ]
33:0340(42)AR
The decision of the Authority follows:


33 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

0-AR-1610

ORDER DISMISSING EXCEPTIONS

On September 9, 1988, the Agency filed exceptions to the award of Arbitrator Edward Levin, pursuant to 5 U.S.C. § 7122(a) and 5 C.F.R. § 2425.1. For the reasons set out below, the Agency's exceptions must be dismissed as interlocutory.

The record indicates the Arbitrator determined the issues to be resolved were: (1) whether the suspension of the grievant was for just cause and, if not, what shall the remedy be; (2) whether the grievant's suspension was arbitrable under the terms of the parties' collective bargaining agreement; and (3) whether issues decided in an unfair labor practice proceeding involving these same parties might also be raised in an arbitration proceeding pursuant to a negotiated grievance procedure set out in the parties' collective bargaining agreement.

The Agency moved for a summary judgement to dismiss the arbitration on the grounds of res judicata. A final decision on the same grievant's suspension was issued by the Authority's New York Regional Director. In that decision, the New York Regional Director dismissed an unfair labor practice charge filed by the Union on the Agency's refusal to participate in the arbitral process concerning the grievant's suspension. The Regional Director ruled that the Union made an election of remedy under 5 U.S.C. § 7121, i.e., to proceed under a statutory appeals procedure, by filing an EEO complaint. Therefore, the Union was precluded from pursuing arbitration on that same matter. The Agency also argued that the Union failed to file a proper grievance in accordance with the parties' agreement.

On July 30, 1