09:1031(144)AR - NTEU Chapter 165 and Customs Service, San Francisco Region -- 1982 FLRAdec AR



[ v09 p1031 ]
09:1031(144)AR
The decision of the Authority follows:


 9 FLRA No. 144
 
 NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 165
 (Union)
 
 and
 
 U.S. CUSTOMS SERVICE,
 SAN FRANCISCO REGION
 (Activity)
 
                                            Case No. O-AR-413
 
                        ORDER DISMISSING EXCEPTIONS
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR BARBARA CHVANY FILED BY THE ACTIVITY PURSUANT TO SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND
 SECTION 2425.1 OF THE AUTHORITY'S RULES AND REGULATIONS.  FOR THE
 REASONS STATED BELOW, IT HAS BEEN DETERMINED THAT THE SUBJECT EXCEPTIONS
 ARE INTERLOCUTORY AND MUST BE DISMISSED.
 
    FROM THE DOCUMENTS SUBMITTED BY THE ACTIVITY, THE FOLLOWING PERTINENT
 FACTS ARE DISCLOSED.  ON JUNE 23, 1982, THE ARBITRATOR ISSUED AN AWARD
 IN THE MATTER WHICH INVOLVED THE GRIEVANCES OF AN EMPLOYEE OVER TWO
 SEPARATE DISCIPLINARY SUSPENSIONS.  IN HER AWARD, THE ARBITRATOR
 SUSTAINED ONE GRIEVANCE DENIED THE OTHER, AND DIRECTED CERTAIN REMEDIAL
 ACTION BY THE ACTIVITY AS TO THE GRIEVANCE THAT WAS SUSTAINED.  IN
 ADDITION, THE ARBITRATOR AWARDED ATTORNEY FEES "INCURRED BY THE UNION IN
 PREPARING, PRESENTING AND ARGUING THE MATTER OF THE" SUSTAINED
 GRIEVANCE.  HOWEVER, AS THE MATTER OF ATTORNEY FEES HAD NOT BEEN ARGUED
 DURING THE HEARING BY THE ACTIVITY, THE ARBITRATOR OFFERED THE ACTIVITY
 AN OPPORTUNITY TO REQUEST A FURTHER HEARING ON THE MATTER.  THE
 ARBITRATOR STATED:
 
    ABSENT NOTIFICATION FROM THE AGENCY OF ITS DESIRE TO HAVE FURTHER
 PROCEEDINGS FOR THIS
 
    PURPOSE AND ABSENT NOTIFICATION OF A SETTLEMENT ON THIS ASPECT OF THE
 REMEDY BY THE PARTIES,
 
    THE ARBITRATOR WILL ISSUE AN ADDENDUM DECISION ON THE SUBJECT OF
 REASONABLE ATTORNEYS' FEES
 
    . . . NO LATER THAN THIRTY CALENDAR DAYS FROM THE DATE OF THIS
 DECISION . . . .
 
    IF THE AGENCY NOTIFIES THE UNION AND THE ARBITRATOR WITHIN FIFTEEN
 (15) CALENDAR DAYS OF
 
    THIS DECISION THAT IT WISHES A FURTHER HEARING . . . ON THE SUBJECT
 OF ATTORNEYS' FEES, AN
 
    ADDENDUM DECISION WILL BE ISSUED WITHIN 30 CALENDAR DAYS FOLLOWING
 THOSE FURTHER PROCEEDINGS.
 
    ON JULY 7, 1982, THE ACTIVITY REQUESTED A FURTHER HEARING BY THE
 ARBITRATOR CONCERNING THE PAYMENT OF ATTORNEY FEES.  THEREAFTER, ON JULY
 21, 1982, THE ACTIVITY FILED ITS EXCEPTIONS TO THE ARBITRATOR'S AWARD
 INDICATING, HOWEVER, THAT IT DID NOT VIEW THE AWARD AS A FINAL DECISION
 AND THAT THE EXCEPTIONS SHOULD BE FOUND TO BE PREMATURE.  ITS EXCEPTIONS
 WERE FILED IN THE EVENT THE AUTHORITY WOULD VIEW THE ARBITRATOR'S AWARD
 AS "FINAL" FOR PURPOSES OF APPEAL.
 
    SECTION 2429.11 OF THE AUTHORITY'S RULES AND REGULATIONS PROVIDES:
 "THE AUTHORITY AND THE GENERAL COUNSEL ORDINARILY WILL NOT CONSIDER
 INTERLOCUTORY APPEALS." THAT IS, THE AUTHORITY ORDINARILY WILL NOT
 CONSIDER AN APPEAL UNTIL A FINAL DECISION HAS BEEN RENDERED ON THE
 ENTIRE PROCEEDING." MORE PARTICULARLY, IN AN ARBITRATION CASE, THE
 AUTHORITY WILL ENTERTAIN EXCEPTIONS FILED BY A PARTY TO THE CASE ONLY
 AFTER A FINAL AWARD HAS BEEN RENDERED BY THE ARBITRATOR ON THE ENTIRE
 MATTER.
 
    IN THIS CASE, AND AS RECOGNIZED BY THE ACTIVITY IN ITS EXCEPTIONS,
 THE ARBITRATOR HAS NOT YET RENDERED A FINAL AWARD DISPOSING OF THE
 ENTIRE MATTER INVOLVED IN THE PROCEEDING BEFORE HIM, INCLUDING THE
 QUESTION OF ATTORNEY FEES.  IN LIGHT OF THE ABOVE, THE ACTIVITY'S
 EXCEPTIONS ARE CLEARLY INTERLOCUTORY AND THE FACTS AND CIRCUMSTANCES ARE
 NOT SO EXTRAORDINARY AS TO WARRANT REVIEW OF THE EXCEPTIONS AT THIS
 STAGE OF THE PROCEEDING.
 
    ACCORDINGLY, SINCE THE ACTIVITY'S EXCEPTIONS ARE INTERLOCUTORY AND
 AUTHORITY REVIEW IS NOT WARRANTED UNDER THE CIRCUMSTANCES, THE
 EXCEPTIONS ARE HEREBY DISMISSED.  HOWEVER, THE DISMISSAL IS WITHOUT
 PREJUDICE TO THE RENEWAL OF ANY OF THE ACTIVITY'S CONTENTIONS IN
 EXCEPTIONS DULY FILED WITH THE AUTHORITY AFTER A FINAL AWARD IS RENDERED
 ON THE ENTIRE MATTER BY THE ARBITRATOR.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
 
                   JAMES J. SHEPARD, EXECUTIVE D