36:0212(24)AR - - AFGE Local 1760 and HHS, SSA, Office of Hearings and Appeals, Region II - - 1990 FLRAdec AR - - v36 p212

[ v36 p212 ]
The decision of the Authority follows:

36 FLRA No. 24




LOCAL 1760










June 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Edward Levin. The issue before the Arbitrator was whether there was just cause for the grievant's 10-day suspension. The Arbitrator concluded that the Agency, by not appearing at the arbitration hearing, failed to prove its contention that the grievance was not arbitrable and failed to justify the grievant's suspension.

The Agency filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.

For the reasons discussed below, we set aside the Arbitrator's award.

II. Background and Arbitrator's Award

On March 12, 1987, the Agency issued a decision to suspend the grievant from March 30, 1987 to April 10, 1987. On April 22, 1987, the Union filed a formal Equal Employment Opportunity (EEO) Complaint on behalf of the grievant. After filing the EEO complaint, the Union also filed "a demand to arbitrate the 10-day suspension." Agency's Supplemental Brief to the Arbitrator at 2-3. Because the Union had not filed a grievance, the Agency refused to arbitrate the matter. Id.

The Union also filed two unfair labor practice charges with the Federal Labor Relations Authority (FLRA). The first charge alleged that the Agency violated the Statute by refusing to arbitrate the matter of the grievant's suspension. The second charge asserted that the Agency failed to provide the Union with a copy of the decision to suspend and, thereby, violated its obligation to furnish information to the Union.

On October 19, 1987, the Regional Director for Region II of the FLRA dismissed both charges. In his decision dismissing the charge concerning the Agency's refusal to arbitrate the matter of the grievant's suspension, the Regional Director found that the Union elected to proceed under a statutory appeals procedure by filing a formal EEO complaint on April 22, 1987. Therefore, the Regional Director concluded that the Union was precluded from pursuing arbitration on that same matter by section 7121(d) of the Statute. Agency's Exhibit 2A. The second charge was dismissed by the Regional Director after his investigation disclosed insufficient evidence to establish that the Activity had not met its obligation to furnish a copy of the decision to suspend to the Union. Agency's Exhibit 2B. The Union subsequently appealed both dismissals to the General Counsel. On November 30, 1987, the General Counsel dismissed both appeals as untimely. Agency's Exhibit 2C.

On July 31, 1988, the Arbitrator issued his first award in this matter finding that "both procedural and substantive issues were properly before the Arbitrator[.]" Award at 2. The Arbitrator scheduled another hearing to consider the procedural and substantive issues. On September 9, 1988, the Agency filed exceptions to the Arbitrator's first award under section 7122(a) of the Statute. The Agency moved for summary judgment on the grounds of res judicata, arguing that a final decision on the same grievant's suspension was issued by the Regional Director for Region II and that, therefore, the Union was precluded from raising the same issue under the negotiated grievance procedure. In U.S. Department of Health and Human Services and American Federation of Government Employees, 33 FLRA 340, 341 (1988), the Authority dismissed the exceptions as interlocutory noting that "[n]o final disposition or remedy in the dispute has been made."

On May 5, 1989, the Arbitrator held a hearing on the following issue:

Was the suspension of [the grievant], . . . , for ten days for good cause and to promote the efficiency of the service?

If not, what shall be the remedy?

Award at 2. The Union was represented at the hearing, but the Agency failed to appear. Accordingly, the Arbitrator proceeded to conduct the hearing ex parte. At the hearing, the Union argued that by not appearing, the Agency failed to prove its procedural objections to the arbitration. The Union argued that "the EEO action is related to claims of sex and racial discrimination, while the instant case involves a separate question of just cause for the ten day suspension." Id. at 3.

After the hearing, the Arbitrator contacted the Agency to verify whether it had received notification of the hearing. The Arbitrator was informed that the Agency was aware of the hearing, but "made a conscious decision not to appear." Award at 1, n.1. The Agency requested and was granted until May 22, 1989, to submit a written presentation on the issues. The Agency submitted a supplementary brief arguing that the grievance was not arbitrable "on the grounds of election of remedy and the Federal policy against forum shopping." Id. at 4.

In his award, the Arbi