is whether the board committed an error when it held that a period of an agency's failure to timely and suspension involve the same matter as a grievance challenging the additional imposition suspect the resolution of this issue depends upon what meaning you ascribe to the statutory terms matter a number of courts have considered the statutory term matter in the context of elect and what they do is they look at whether the two forms a few would have to consider the same set of operative facts in order to resolve the matter before or if if so then the matters are considered to be the same if on the other hand a subsequent proceeding involves different harper effects as in this case that occur as here after the initial read this was filed the proceedings do not involve the same manner so called indefinite suspension typically i guess that although they are called indefinite they really are they they have a term for their terminations there is a an indefinite as in we will put you back if and when the spirit moves us is not an indefinite suspensions or move i mean with a with a potential rehire so something like this was pending further investigation and or resolution of the criminal charges against him now we know that in the conventional sense of the word the latter occurred and at that point if i understand your position is at that point there's an important change in the nature of the matter that at this point it becomes in effect either a different suspension or our removal but in any event whenever the original indefinite suspension was has come to an end that suspension condition subsequent for example in our case is not merely be acquittal mr rhodes but also the agency's having a fair amount a reasonable amount of time to conduct an investigation to see if it was to mr action against mr rose so the way i'd like to look at this is that you've got kind of a single person action indefinite suspension but that consists of more than one matter because i different than most personnel actions and that it takes place of the period of time that's exactly what i actually viewed exactly the question i had so your review of this is that even after the  and even after the occurrence and let's let's assume let's leave out for the moment the further investigation part of the condition subsequent just say resolution of the criminal charges and let's assume further that that means either acquit that your view is that that when the acquittal of curs that does not constitute the end as a matter of law of the indefinite suspension after which there is a new suspension or removal but rather that there's a new matter with the scope of the indefinite suspension is that if i understood you not to tell you the truth i think you could look at it either way if you looked at it this is a new suspension then we would have no problem in this case whatsoever a moment ago pending further investigation i think you may have alluded to your interpretation of that earlier but i just want to make sure i understand is it your view that that is an investigation which is part of the criminal process or an investigation separate from the criminal process which could continue even after resolution of criminal charges well in fact it is an investigation that really begins after the resolution of criminal the the that fact because the acquittal is such a an important ingredient and the set of facts associated with the continued viability of the suspension that it turns to the original suspension becomes almost irrelevant to the validity of the continuing the suspension that is to say no matter how justified it may have been to suspend somebody who has been charged by a grand jury with a criminal felony the  imposition of suspension why would we continue with that agreement the only issue there is the imposition of suspension can i ask you a question just to clarify something in my mind it was a little unclear to me from the papers you're not saying words i just want to make sure this isn't a question jurisdiction this is simply a matter of a question of you're saying this is a separate matter therefore you have the option to go to the board in not continue with the arbitrator well our position has always been and by the way customs is not and before the court during the earlier proceedings customs did not deny that the arbitrator would not have had jurisdiction to consider the subsequent event let's say participating to submit an issue to an arbitrator and that's the only issue considers also you cannot file a grievance over something that has not happened yet and that is also crucial so our grievance get a different arbitrator but if anything that shows that we're talking about two different matters here so our our position is there were two different matters at stake at the point at which we withdrew the first grievance we had now the ability to could the administrative judge say in the context of that original appeal without the filing of any new appeal as a matter of board of law could the administrative judge have said now that things have changed i look at this through a very different filter in light of subsequent events so you're filing with zach as far as what happens here except yes except that instead of withdrawing the appeal you had maintained the appeal and the administrative judge not resolved the case until the acquittal and then you came in before the administer judge and said guess what last friday there was an acquittal in this case the entire set of legal arguments that we've been making a change in our position a a j and i and you come in and you say ok we had a tough row to hoe when all that was there was this grand jury indictment but that's gone now and now the only real basis on which you can there was a case for a while back but more and this is the first one of these cases and in that case the employees who challenge the imposition of the suspension and the rules right and the and the question was well the agency doesn't put them back to work upon the satisfaction of condition subsequent how can the employees know that there was this first or get review of that and the words that you can get if you would in the context of  it's not really it's a little bit different than the marketplace ok you can file a new appeal so in other words in that case where necessary work recognize that this was a second independent people that could be filed concerning this campus argument that she's not saying there's necessarily more than one action but that regardless of whether this is considered one action or not there are two separate matter if involving two separate sets of sachs and two separate sets of elements that need to be established and why shouldn't that be treated consistent with hopping and this is a separate matter for purposes criminal charges but they obviously intended that there was something left in that arbitration that would happen after the criminal charges were resolved otherwise they were not even held in abeyance when my question to you is to have you addressed counsel assertion that the arbitrator would not have had serious fiction to consider determination of the indefinite suspension portion of that suspension but the question really is is net that the extent to which the arbitrator can take into account dramatic changes in the underlying circumstance know if you if i i filed my grievance and the grievance is you improperly suspended me pending resolution of this case you have the criminal charges against me which are now pending in the form of grand jury is very different from the question that is now the question to be determined which is can you continue to suspend me or remove me or otherwise not reinstate me even after the criminal charges have been resolved favorably to me now if it doesn't seem to me it's a sufficient answer to judge since question to say well it's all one suspension and therefore when you bring this before the arbitrator the opportunity can decide whatever is within the scope of deciding whether the suspension is lawful i mean it's a miss kaplan says the arbitrator could not address anything more than the initial legitimacy of the suspension which presumably would have been a pretty short proceeding in which the arbitrator would have said you lose because they have a criminal charge against you into arbitra it seems to me at least plausible to say that it's a very different question as to whether later on when there is an acquittal the agency can still suspend indefinitely or ultimately remove somebody or simply continuing the suspension forever based on conduct which resulted in quick meaning may be able to but it's a much harder argument for the agency to make you think  it may be are not given given that it's the setting is different what gives you complete confidence that the arbitrator could simply say well ok the situation is now different now i'll tell you what the answer to this question which now i don't know that any one particular arbitrators into doing any one particular case i wish i didn't know that so we can't say for sure because the arbitration request here was in fact true that the arbitrators powers are somehow limited something i do not see in some ways that's a restriction or a limitation on the forum elected by if you choose to use and you have to accept the restrictions and the benefits of your factor let me ask you the same question i asked if you had a pending challenge to an indefinite fact of the acquittal in assessing the validity of the suspension or with the aged just be limited to the validity of the original suspension which was the subject of the appeal if the appellant in that case that i have been acquit that is one of the benefits of coming in one of these actions or merits inspections or it seems kind of peculiar to call it unfortunate because nothing you're not forcing anything you haven't even got an original letter the only thing you've got is is you filed an appeal addition or insist look for the appellant and says look i've just been acquitted then you may call it an enforcement action you could call it an elephant but it's really isn't enforcing anything right it's just it's just another aspect of the original appeal but i take it that what you're saying is well whatever you call it the initiative judge could and indeed would have an obligation to entertain that that portion of the claim your honour's quite right it is a little odd to gotten the first appeal but dismissed it on the ground that disposed of it simply granted judgment for the agency right quickly and then the acquittal came in then the employee could come back to the board and say now of the agency i will be to return the boy to their duty stations and even if the the individual came in the employee comes in files the original challenge to the suspension and then dismisses it two days board language involved in it is what it said it would be if it's an appeal of the original suspension it would be a repetitive appeal which you would normally think would be subject to rescue secada objections but the board doesn't treat it that way it would be a repetitive appeal it may have been better for example than the board use the word reopen because essentially that's what the board is doing is saying we're going to give you an initial appeal of your place in an employing agency is capable of that so the employing agency decides we really don't want to have number one we don't want this fella back and number two we don't want to have to deal with any appeal before the m s p be our an arbit anything so that on the facts of this case what they do is they say ok there was a withdrawal there was an election of arbitration and then withdraw all of the arbitration and with respect to the initial suspension we'll just keep him on suspension for the rest of time and their explanation will be the we're still engaged in this investigation could he never go back to the board and say this is this is no longer a valid suspension  correct that the arbitrator whether by contract or by arbitron practice will not consider subsequent facts subsequent to the facts available at the time the grievance and therefore he could not have his acquittal be considered he could not have war definition are what matter what the matter is to say that sounds fun but but i think there's many cases the deal with this isn't the way that the courts treat this is when we decide what the matter is we're looking at what the set of operative facts are to do that why if you haven't i'm going pregnant proceeding you don't want to have a parallel administrator proceeding going on it would be very prejudicial to mr rose to be testifying in the administrative proceeding while he has a criminal case in understand it as a matter of course the union will grieve the initial imposition even though i think it has been said here that that's a loser because when you're indicted that's probably grounds to s you are you saying this in initial greeting was basically pro forma and we shouldn't i mean it doesn't seem to me as though it served any purpose in the first instance and that's one of the reasons you're suggesting that we should really pay attention to it and has this second i can't and having a resolution  aspect of it was after the question the reason for doing it is if you don't really know for sure that you can lose when you file a grievance like that you don't know enough about the facts of the cases that you don't know what  that there weren't really reasonable grounds to suspend maybe someone customs do something maybe there's uncertainty about play here maybe you could argue at the end of the process that there was no nexus between the crime charged in the person's job which is another basis one one form of law or not the public or private could you have or could you still go to the arbitrator and say yes we had that initial arbitration but now we have a different grievance in the grievance