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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 Arbitrator noted that the Agency's written arguments "may very well be meritorious." Id. at 4. However, the Arbitrator found that because the Agency's arguments were not presented at the hearing, the Union was deprived of the opportunity to question and examine the evidence on which those arguments were based. The Arbitrator concluded that the Agency "failed to carry its burden of proving its contentions in the give and take of a hearing, which is the hallmark of the arbitration process." Id.

On the issue of just cause for the 10-day suspension, the Arbitrator found that "[i]nasmuch as the Agency did not appear at the hearing, it failed to carry its burden of proof to justify the disciplinary action." Id. The Arbitrator concluded that the Agency "has not proved good cause" and ordered that the grievant "be paid for the time she was suspended as well as any other benefits she would have been entitled to, but for the suspension." Id. at 4-5.

III. Agency's Exceptions

The Agency argues that the award is contrary to sections 7121(d) and 7116(d) of the Statute because "the award concerns matters already conclusively disposed of by the Authority[.]" Exceptions at 1. The Agency asserts that the grievance was barred under section 7121(d) because the grievant had earlier raised the matter of her suspension as a formal complaint of discrimination under the statutory EEO procedure. According to the Agency, the award "concerns matters . . . which the FLRA determined was [sic] previously . . . filed through the statutory Equal Employment Opportunity complaint procedure[.]" Id. at 2. The Agency also argues that the award is contrary to section 7116(d) of the Statute because the Union had previously raised the matter of the grievant's suspension under the unfair labor practice procedure.

IV. Analysis and Conclusion

We conclude that the award must be set aside because the matter before the Arbitrator was precluded from being raised as a grievance by section 7121(d) of the Statute.

The Statute provides in section 7121(d) that when an employee affected by a prohibited personnel practice under 5 U.S.C. § 2302(b)(1), such as an allegation of discrimination, has raised the matter under a statutory procedure, the employee may not file a written grievance under the negotiated grievance procedure concerning the same matter. For a grievance to be precluded by section 7121(d), two conditions must be met: (1) the matter which is the subject of the grievance must be the same matter which was the subject of the action initiated under the statutory procedure; and (2) such matter must have been earlier raised by the employee timely initiating an action under the statutory procedure. American Federation of Government Employees, Local 3230, AFL-CIO and Equal Employment Opportunity Commission, 22 FLRA 448, 450 (1986).

In dismissing the unfair labor practice charge asserting that the Activity refused to arbitrate, the Authority's Regional Director found that both conditions of section 7121(d) had been met. The Regional Director found that after the Activity issued a decision to suspend the grievant from March 30, 1987, to April 10, 1987, the grievant "filed a formal Equal Employment Opportunity (EEO) complaint, . . . , alleging systemic discrimination by the Activity in connection with the employee's three suspensions." Agency's Exhibit 2A. The Regional Director also found that on May 4, 1987, the Union invoked arbitration "on the March 30, 1987 to April 10, 1987 suspension." Id. Consequently, the Regional Director found that "the matter of the suspension from March 30, 1987 to April 10, 1987 was raised under the statutory EEO procedures prior to either a grievance filing or the invocation of arbitration." Id. at 1-2. The Regional Director concluded that the prior election of the formal EEO procedures precluded consideration of the suspension through the negotiated grievance and arbitration procedures.

The Union did not file an opposition to the Agency's exceptions and no basis exists in the record on which to disagree with the Regional Director's findings. Based on those findings, therefore, we find that the subject of the Arbitrator's award--the grievant's 10-day suspension--was the same matter which was the subject of the formal EEO complaint. We also find that the formal EEO complaint was filed on April 22, 1987, prior to the Union's invocation of arbitration on May 4, 1987. Accordingly, as the conditions of section 7121(d) have been met, we will set aside the award. See U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 564, 568 (1986) (award found deficient because the aggrieved employee elected to raise a suspension under the EEO statutory procedures prior to filing a grievance). In view of our conclusion, it is unnecessary to address the Agency's argument that the award violates section 7116(d) of the Statute.

V. Decision

The Arbitrator's award is set aside.

(If blank, the decision does not have footnotes.)